WAIVING COURT COSTS V. DISMISSING CASES

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I find the article below interesting.  It is about how the Durham, NC District Attorney is dismissing old cases for people so they can get their license reinstated.  I do not have a problem with what they are doing.  In fact, I think it is a good idea.  In contrast to their dismissing cases, the NC Legislature has made it virtually impossible for a judge to waive court costs or fees.  As a result, if you get a ticket and simply do not go to court for a few years and continue to accumulate Driving While License Revoked charges, eventually the DA will just dismiss everything and you pay nothing.  On the other hand, if you go to court and want to do the right thing but simply cannot pay the court costs due to your financial situation, the judge cannot do anything to help you.  It does not seem right that the judge who can ask you about your financial situation and offer to waive court costs in return for something like volunteer work cannot waive your court costs but years later, the DA can in effect waive the court costs by dismissing your case if you never show up in the first place.  To me, this process rewards the person who doesn't even try to be responsible and penalized the one who does.

DURHAM, N.C. (WNCN) - People living in Durham County are getting their licenses back with the new Durham County Driver License Restoration Program.
Durham’s District Attorney’s office has dismissed traffic charges for 500 people so that they can get their driver’s license back.
“Dismissing these cases is the right thing to do and that’s what our office is here for,” said Assistant District Attorney Josephine Davis.
She is working with the city to make it happen. According to the DMV, more than 1 million people in the state currently have their licenses revoked. A research study showed people who couldn’t drive in the county, found it harder to get to work.
“If we really want everyone in our community to be able to flourish — if we want individuals who have made mistakes in the past to be able to get back on the right path to be able to sustain themselves and support their families — having a driver’s license is one important is it that,” said Ryan Smith, the Innovation Team Project Manager for the City of Durham.
The DMV says more than 46,000 people in the county have their licenses revoked or suspended for either missing court or not paying fines.
“Is losing your license forever for failing to pay a speeding ticket too strict,” Smith asked. “I think it is.”
In the pilot phase of the program, 2,500 charges were dismissed for the people eligible. Those people have had their licenses revoked for at least a year and a half. Certain charges such as DWI’s and speeding a school zone will disqualify you from the program.
After applying, the DA’s office looks at your income and whether you’re able to pay your fines.
“Some of them have $500 fines, $1000 fines and so the question is, how can we help that group of the community,” said Davis. “Those are people that are poor, people of color people, who normally can’t afford it.”
Davis says this is a way to hold people accountable, as well as give them a clean slate.
“People have been punished because their licenses have been revoked,” she said. “There is no need for us to continue to punish people financially, having them come to court, they’ve already taken responsibility because they don’t have their driver’s license. We want to put people in a position to do the right things to drive legally.”
You can apply by simply texting your name and birth date to the designated number. Right now, the program is not accepting applications until it relaunches in the fall.
Leaders are scheduling meetings to get Wake and Orange counties involved in this program as well.

Copyright 2018 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

DWI and the Necessity to Drive

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Great post on necessity of DWI.  Thank you to Shea Denning of NCSOG.

After a bad break-up, Dan drives to a local bar, where he begins drinking. He hasn’t planned in advance how he is going to get home. If he drinks too much to drive, he thinks, he will summon a ride on his smart phone. Dan is on his seventh drink in two hours when a man storms through the front door of the bar, waving an assault rifle and threatening to shoot up the place. Dan bolts for the nearest exit, jumps in his car, and drives away. Less than a half-mile away from the bar, Dan runs through a red light and is stopped by a law enforcement officer. Dan is subsequently charged with driving while impaired. At trial, he asks the judge to instruct the jury on the defense of necessity. Is Dan entitled to that instruction?



Yes, Dan is entitled to an instruction on the defense of necessity.

This defense, like other common law affirmative defense, such as duress and entrapment, is available in a prosecution for driving while impaired. State v. Hudgins, 167 N.C. App. 705, 709 (2005). The rationale for the necessity defense is that “‘the law ought to promote the achievement of higher values at the expense of lesser values, and [that] sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.’” State v. Thomas, 103 N.C. App. 264, 265 (1991) (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 50, at 382 (1972)). Thus, “‘[i]f the harm that results from compliance with the law is greater than the harm that will result from a violation, then the person is justified in violating the law.’” Id. (quoting LaFave & Scott, supra, at 381).

The defense of necessity excuses a person from criminal liability if he or she acts under circumstances to protect life or limb or health in a reasonable manner and with no other acceptable choices. It is restricted to situations in which a person acted to save himself or another person from peril or to relieve severe suffering and does not apply to actions taken merely to prevent possible damage to property. Hudgins, 167 N.C. App. at 710. The defense does not apply to actions taken to protect animals. See Brooks v. State, 122 So.3d 418 (Dist. Ct. App. Fla. 2013) (determining that necessity defense did not apply to driving of a seriously ill cat, who died during or shortly after the vehicle stop, to the veterinarian).

To support a defense of necessity, the evidence, construed in the light most favorable to the defendant, must permit the jury to reasonably infer that the defendant (1) took reasonable action, (2) to protect the life, limb or health of a person, and (3) no other acceptable choice was available.

If the evidence supports such a determination and the defendant requests an instruction on the defense of necessity, the trial court must so instruct the jury.

In Dan’s case, it was reasonable to flee the premises where a man was waving an assault rifle, which he was threatening to shoot. Dan took these actions to prevent himself from being shot. He had no time to summon another form of transportation, and running might not have removed him from the gunman’s range of fire.

A recent case. Yesterday, the court of appeals in State v. Miller, __ N.C. App. ___ (March 6, 2018), reaffirmed the applicability of the defense of necessity to charges of impaired driving and determined that the trial court erred by failing to instruct the jury on the defense.

The facts. In Miller, the defendant and his wife rode their golf cart over dirt pathways to a biker bar near their home in Apex. Miller’s wife planned to drive home since she expected her husband to drink more than she did at the bar. After spending two and a half hours at the bar, and drinking several drinks (Miller’s wife said she drank more than four but fewer than seven drinks), they decided to leave. In the parking lot, Miller (who had the keys to the golf cart) argued with several men, and punched the “baddest motherf_cker in the bar,” knocking him to the ground. The man (we’ll call him Leroy) got up from the ground, pulled a gun from his waistband and raised it in the air. At this point, the defendant hurriedly got into the golf cart with his wife and took the fastest route out of the parking lot. This involved driving on Old Highway U.S. 1. Almost as soon as the defendant turned onto the highway, a law enforcement officer drove past. He saw that the golf cart was straddling the center line and had no headlights. The officer stopped Miller’s golf cart and ultimately charged Miller with impaired driving.

The request. At his trial in superior court, Miller requested that the court instruct the jury on “necessity and duress.” Perhaps because there is no pattern jury instruction for necessity, Miller asked the court to give the pattern instruction on compulsion, duress or coercion. The court, which conflated the analysis of duress and necessity, rejected Miller’s request on the basis that there was no evidence that he was in actual fear when he drove the golf cart on the highway. Miller was convicted and appealed.

Appellate court’s analysis.  After affirming the defense of necessity applies to charges of impaired driving, the court of appeals clarified that necessity and duress are not the same defense.

To successfully invoke the duress defense, a defendant must show that his actions were caused by a reasonable fear that he would suffer immediate death or serious bodily injury if he did not so act. Accordingly, a duress defense generally is used to justify a defendant’s actions based on intentional threats from a third party that are designed to coerce the defendant to carry out a crime.

Necessity, in contrast, excuses actions that are based on a defendant’s reasonable response to some event or occurrence that threatens a person’s life or health. Fear is not an element of the defense of necessity.

Viewing the evidence in the light most favorable to Miller, the court of appeals held that the jury could reasonably have determined that Leroy’s display of a handgun immediately after being knocked to the ground by Miller presented an immediate threat of death or serious bodily injury to Miller, his wife, or a bystander. As a result, the jury could reasonably have concluded that Miller’s attempt to escape from that danger by driving the golf cart for a brief period on the highway was a reasonable action taken to protect life, limb or health. There also was, in the court’s view, sufficient evidence from which the jury could have found that Miller had no other acceptable choice to avoid the danger. The route to the dirt paths was blocked. Miller’s wife could not drive as she was panicking and was apparently also impaired by alcohol. Running was not an option since Miller’s wife “was not a runner” as she had “‘broken [her] leg area’” at some time in the past.

Is it necessity if you were going to do it anyway? As I read Miller, I wondered whether the case would have come out the same way if the couple had driven out of the parking lot in their car. Probably not, I thought, since then there would be no question that they were going to commit the offense of impaired driving regardless of whether a fight had broken out in the parking lot and a gun was brandished. But aren’t those essentially the facts anyway?

The court of appeals emphasized several times that the melee in the parking lot caused Miller to resort to driving while impaired on the highway. But the elements of impaired driving are met if a person drives while impaired in a public vehicular area, in addition to on a street or highway. The golf cart was parked in the parking lot of the bar. That’s a public vehicular area. So regardless of what transpired once Miller and his wife got to the parking lot, one of them was getting ready to drive the golf cart on a public vehicular area. And the evidence tended to show that they were both impaired.

That inevitability distinguishes Miller in my mind from the facts set out at the beginning of the post and from kind of facts that previously have supported a necessity defense in impaired driving cases. My concerns were not, however, shared by the court of appeals, which granted Miller a new trial.

NC Seat Belt Laws

 
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Great post from NC SOG.  Thanks to Shea Denning for the post.  As I teach a 4 hour safe driving course, I am amazed at the reasons young people give for not wearing their seat belts.  In one class, we had a student who wore his seat belt during the day but not at night.  His reasoning was that at night he did not want to get trapped in the car in case of an accident.  In every class, we have a least one student who claims to have a friend who lived because they were not wearing their seat belt.  Maybe it is a generational thing but I cannot imagine not wearing my seat belt.

State law has mandated seat belt use by North Carolina motorists for more than thirty years. The seat belt law has, however, changed a bit over time. As a result, not everyone is clear on who is covered, what is required, and what the penalties are for violations. This post covers the particulars of North Carolina’s seat belt requirements and addresses three common areas of confusion.
1. Everyone in the car must buckle up.
G.S. 20-135.2A(a) requires that each occupant of a motor vehicle manufactured with seat belts have a seatbelt properly fastened about his or her body when the vehicle is in forward motion on a street or highway. When it was first enacted, G.S. 20-135.2A (1985) only required seat belt use by drivers and front seat passengers. Ten years ago, the General Assembly amended the law to require that everyone in the vehicle, including rear seat passengers, buckle up.
A separate statute, G.S. 20-137.1, requires that drivers with passengers who are under 16 years of age have such passengers secured in a child passenger restraint system or seat belt.
A handful of exceptions to the seat-belts-for-all-occupants requirement are listed in G.S. 20-135.2A(c).They apply to the following persons and motor vehicles:

• Drivers or occupants of noncommercial motor vehicles with medical or physical conditions that prevent seat belt restraint;
• Rural letter carriers;
• Newspaper delivery persons while delivering newspapers;
• Drivers and passengers who frequently stop and leave their vehicles or deliver property from their vehicles if the vehicle’s speed between stops is 20 mph or less;
• Property carrying vehicles used for agricultural purpose in intrastate commerce;
• Motor vehicles that are not required to be equipped with seat belts under federal law;
• Occupants of a motor home other than the driver and front seat passengers;
• Persons in the custody of a law enforcement officer who are being transported in the back of a law enforcement vehicle; and
• Passengers of a residential garbage or recycling truck while the truck is operating during collection rounds.

2. A motor vehicle may not be stopped for a back-seat passenger’s failure to buckle up.
A law enforcement officer who has reasonable grounds to believe that a driver or front seat passenger does not have a seat belt properly fastened about his or her body may stop the car to investigate.  A law enforcement officer who has reasonable grounds to believe that a rear seat occupant is not wearing a seat belt may not. That’s because G.S. 20-135.2A(d1) categorizes the failure to buckle up in the back seat as a secondary violation for which a vehicle may not be stopped. A law enforcement officer who has lawfully stopped a vehicle for another reason and learns in the process of a rear seat belt violation may, of course, cite the driver for this offense. Nearly as many charges were issued for unbuckled rear seat passengers in 2015 (12,847) as there were for unrestrained front-seat passengers (13,808). Charges for both categories were vastly outnumbered by the 108,320 charges issued for unbuckled drivers that year.
3. You need a statute book and a calculator to figure out the penalty for front seat violations.
The monetary penalty for a seat belt violation has significantly increased since seat belt use was first mandated. Back in 1986, a violation of the seat belt law (then, as now, an infraction) was punishable by a fine of $25. No court costs were assessed. Today, the penalty for a front-seat occupant’s failure to wear a seat belt is $25.50 plus $153.50 in district court costs. That’s a total of $179.
It is much simpler to calculate the costs of a rear seat violation. The penalty is a flat $10 and no costs may be assessed.
Are statutory amendments on the horizon? 
The Child Fatality Task Force, a legislative study commission, has recommended that law enforcement officers be permitted to stop vehicles for a back seat passenger’s failure to wear a seat belt and that the fine for back seat violations be increased to $25.  The task force contends that these changes are necessary to meet occupant protection criteria established by the National Highway Traffic Safety Administration and to shore up certain federal funds. The task force further contends that making rear seat belt requirements a primary enforcement violation will increase seat belt usage. The group cites research findings that a greater percentage of fatal and serious injuries occur to unrestrained rear seat occupants than to unrestrained front seat occupants. It also states an unrestrained back seat passenger can injure a front seat passenger in a crash.

Field Sobriety Test

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Great article on Field Sobriety Test by Shea Denning at NC School of Government.

ost drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested.  Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment:  the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination.  That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested?  Must he first be provided Miranda warnings?
Generally no.
Why?  Because the evidence gathered usually is physical rather than testimonial or communicative in nature.
Case in point. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the United States Supreme Court considered whether a trial court erred in admitting a videotape of the defendant filmed after his arrest on impaired driving charges but before he was given Miranda warnings. The videotape included footage of the defendant answering questions at the booking center, including:  “[W]hen you turned six years old, do you remember what the date was?” The defendant responded, “No, I don’t.” The videotape also showed the defendant performing the three standardized field sobriety tests and captured the statements he made during those tests.
The trial court admitted the videotape and subsequently rejected Muniz’s motion for a new trial based on the tape’s admission. The superior court reversed.  Though it agreed that no Miranda warnings were required before Muniz was asked to submit to a field sobriety test because such tests elicit physical rather than testimonial evidence, the court held that when the tests begin to yield communicative statements, Miranda is implicated.  Thus, the superior court concluded that Muniz’s answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the physical tests were testimonial.  The United States Supreme Court granted certiorari.
Answers to questions at booking. The Supreme Court first considered whether Muniz’s answers to the questions posed at the booking center were testimonial, explaining that if they were, they should have been suppressed since Muniz was not advised of his Miranda rights until after the videotaped proceedings concluded. A majority of the court concluded that Muniz’s answers to questions regarding his name, address, height, weight, eye color, date of birth, and current age did not constitute custodial interrogation, though they disagreed as to why.  Four justices relied on an exception for routine booking questions, while another four held that the statements were not testimonial.  Five justices agreed that the sixth birthday question required a testimonial response, as it left Muniz with the “choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate.”  Id. at 599. The court explained that the incriminating inference of impaired mental faculties stemmed not simply from the fact that Muniz slurred his response (which provided physical rather than testimonial evidence of impairment) but also from the testimonial aspect of the response, which revealed Muniz’s mental confusion.
Videotape of field sobriety tests. The Supreme Court quickly disposed of Muniz’s argument that the videotape of the field sobriety tests, which included Muniz’s verbal statements, should have been suppressed. Noting that the officer’s dialog with Muniz concerning the sobriety tests “consisted primarily of carefully scripted instructions as to how the tests were to be performed,” the court determined that the “instructions were not likely to be perceived as calling for any verbal response and therefore were not ‘words or actions’ constituting custodial interrogation.” Id. at 603. Thus, the court concluded that “Muniz’s incriminating utterances during this phase of the videotaped proceedings were ‘voluntary’ in the sense that they were not elicited in response to custodial interrogation.” Id. at 604.
What about alphabet and counting tests?  Several courts have considered post-Muniz whether non-standardized field sobriety tests that require verbal responses implicate the privilege against self-incrimination. Most have included that such responses are not testimonial; thus no Miranda warnings are required before they are administered.  The Supreme Judicial Court of Massachusetts, Suffolk, explained in Vanhouten v. Commonwealth, 676 N.E.2d 460 (Mass. 1997), that because the alphabet cannot be “fabricated or guessed at” a person reciting it is “not faced with the dilemma of deciding between a true of false answer.” Id. at 466.  “As such,” the court explained, “the recitation of the alphabet lacks inherent communicative value because it does not convey knowledge of any fact specific to the person being questioned.” Id. (citing cases from ten other states reaching the same conclusion with respect to alphabet recitation and counting exercises). The Supreme Court of Florida, however, concluded in Allred v. State, 622 So.2d 984 (Fla. 1993), that suspects who were asked to recite the alphabet from “c” to “w” and to count from 1001 to 1030 were being interrogated as “a reasonable person would conclude that the request to recite, out of the ordinary sequence, letters and numbers was designed to lead to an incriminating response.” Id. at 987.

North Carolina DWI Grossly Aggravating Factors

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The following are Grossly Aggravating Factors for DWI sentencing.

Determining Existence of Grossly Aggravating Factors. - At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:

(1)        A prior conviction for an offense involving impaired driving if:

a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.         The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

(2)        Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

(3)        Serious injury to another person caused by the defendant's impaired driving at the time of the offense.

(4)        Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).

  Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

DWI Aggravating Factors

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Aggravating Factors for DWI are as follows:


Aggravating Factors to Be Weighed. - The judge, or the jury in superior court, shall determine before sentencing under subsection (f) whether any of the aggravating factors listed below apply to the defendant. The judge shall weigh the seriousness of each aggravating factor in the light of the particular circumstances of the case. The factors are:

(1)        Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(2)        Especially reckless or dangerous driving.

(3)        Negligent driving that led to a reportable accident.

(4)        Driving by the defendant while his driver's license was revoked.

(5)        Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.

(6)        Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.

(7)        Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.

(8)        Passing a stopped school bus in violation of G.S. 20-217.

(9)        Any other factor that aggravates the seriousness of the offense.

Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level shall be imposed.

DWI Mitigating Factors

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The question often arises, what are mitigating factors for DWI sentencing.  Below is a list from NCGS 20-179(e) of all the mitigating factors.

(e)        Mitigating Factors to Be Weighed. - The judge shall also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge shall weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:

(1)        Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.

(2)        Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.

(3)        Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.

(4)        A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.

(5)        Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.

(6)        The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.

(6a)      Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.

(7)        Any other factor that mitigates the seriousness of the offense.

Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.

  Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

New laws on Sexual Offenses

Explanation of new laws by the NC School of Government.

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In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law:

This case illustrates a significant ongoing problem with the sexual offense statutes of this State: the various sexual offenses are often confused with one another, leading to defective indictments.

Given the frequency with which these errors arise, we strongly urge the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another. Currently, there is no uniformity in how the various offenses are referenced, and efforts to distinguish the offenses only lead to more confusion.… We do not foresee an end to this confusion until the General Assembly amends the statutory scheme for sexual offenses. (citations omitted).

Responding to the court’s plea, the General Assembly took action. In S.L. 2015-181 it created a new Article 7B in Chapter 14 entitled “Rape and Other Sex Offenses” and recodified many of state’s sexual assault crimes. Separately, S.L. 2015-62 tweaked the elements of statutory rape and sex offense of a person under fifteen and S.L. 2015-44 increased the punishment for two sexual activity with student offenses and amended the definition of the term “school personnel.” All of the changes become effective December 1, 2015, and apply to offenses committed on or after that date. S.L. 2015-181 sec. 48; S.L. 2015-62 sec 1(d); S.L. 2015-44 sec. 5. The table below summarizes these changes and, come December 1^st hopefully will direct those involved with charging these crimes to the correct statute. Already anticipating mistakes in that regard? As I discuss in this bulletin an error in the statutory citation is not a fatal defect when the charging document otherwise properly alleges the crime committed (see my Criminal Case Compendium for more recent cases on point). As also noted in my bulletin, the statutory citation may be amended when the body of the charging instrument puts the defendant on notice of the crime charged. In any event, it’s always easier to do it right the first time. To that end here is your cheat sheet:

Offense	Old statute	New statute	Substantive changes
First-degree forcible rape	G.S. 14-27.2	G.S. 14-27.21	None
Second-degree forcible rape	G.S. 14-27.3	G.S. 14-27.22	None
Statutory rape by an adult	G.S. 14-27.2A	G.S. 14-27.23	None
First-degree statutory rape	G.S. 14-27.2	G.S. 14-27.24	None
Statutory rape of a person who is 15 or younger	G.S. 14-27.7A	G.S. 14-27.25	1. Adds requirement that defendant be at least 12 years old 2. Statute now applies whenever victim is 15 years old or younger (used to apply to victim who was 13, 14, or 15 years old) 3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
First-degree forcible sexual offense	G.S. 14-27.4	G.S. 14-27.26	None
Second-degree forcible sexual offense	G.S. 14-27.5	G.S. 14-27.27	None
Statutory sex offense by an adult	G.S. 14-27.4A	G.S. 14-27.28	None
First-degree statutory sexual offense	G.S. 14-27.4	G.S. 14-27.29	None
Statutory sex offense of a person who is 15 or younger	G.S. 14-27.7A	G.S. 14-27.30	1. Adds requirement that defendant be at least 12 years old 2. Statute now applies whenever victim is 15 years old or younger (statute used to apply to victim who was 13, 14, or 15 years old) 3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
Sexual activity by a substitute parent	G.S. 14-27.7(a)	G.S. 14-27.31(a)	None
Sexual activity by a custodian	G.S. 14-27.7(a)	G.S. 14-27.31(b)	None
Sexual activity with a student	G.S. 14-27.7(b)	G.S. 14-27.32	1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school. 2. Sexual activity with a student by person <4 years older than the student raised from Class A1 misd. to Class I felony.
Indecent Liberties with a student	G.S. 14-202.4	No change	1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school. 2. Indecent liberties with a student by person <4 years older than the student raised from Class A1 misd. to class I felony.
Sexual battery	G.S. 14-27.5A	G.S. 14-27.33	None

Moped Registration

www.kisslinglaw.com

North Carolina is now requiring mopeds to be registered.  Mopeds have been a way of transportation for individuals who have not been able to get a license or if their license is suspended.

Below is an article by Shea Denning of the North Carolina School of Government on the issue.

Beginning tomorrow, mopeds must be registered with the Division of Motor Vehicles to be lawfully operated on the state’s roadways. This post addresses several questions that have arisen regarding this new requirement. 
What’s a moped?  A moped is “[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. 20-4.01(21a) (incorporating definition in G.S. 105-164.3). Motorized vehicles that otherwise matched this description but had larger engines or were capable of traveling faster than 30 miles per hour on a level surface already were required to be registered. See G.S. 20-50(a).
The new registration requirement.  S.L. 2014-114 enacted G.S. 20-53.4, effective July 1, 2015, which requires that mopeds be registered before being driven on streets or highways in 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 that for registering a motorcycle–$18.00. See G.S. 20-87(6). Additional fees apply to residents of Durham, Orange, Randolph, and Wake Counties.
Is insurance required? Not yet, but it likely will be beginning July 1, 2016. The General Assembly ratified H 148 last week, and the bill awaits the governor’s signature. The bill amends G.S. 20-309(a) to require 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.
Is failing to register a moped a crime? Yes. Driving an unregistered moped on a street or highway or allowing a moped you own to be so driven is a Class 3 misdemeanor. See G.S. 20-111(1). The same is true for failing to display a current registration plate on a moped. Id.
Given the newness of the requirement, DMV Commissioner Kelly Thomas has asked law enforcement officers to consider issuing warning tickets rather than citations during the first thirty days the law is in effect.
Are more changes coming? Perhaps. The act that required registration of mopeds directed the Joint Legislative Transportation Oversight Committee to study whether additional statutory changes are needed to ensure the safe operation of mopeds. The North Carolina Department of Transportation recommended to the committee earlier this year that driver’s licenses be required for the operation of a moped and that mopeds be prohibited from roadways with speed limits of 45 miles per hour or greater.