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c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.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

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.

EXPUNGEMENT OF DWI IN NORTH CAROLINA

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

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

Moped Registration

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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.

Wake County Underage Possession of Alcohol

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Great article on underage possession of alcohol.  One should note that it is against NC law for a parent to serve or provide alcohol to their minor children.

by Monica Steiner, Contributing Author

A minor in North Carolina may not purchase, possess, or consume alcohol with few exceptions (see below). (North Carolina Gen. Stat. Ann. Section 18B-302(b).) It is also illegal for anyone to sell or give alcohol to a minor; or to otherwise help a minor to obtain alcohol. (North Carolina Gen. Stat. Ann. Section 18B-302(a)(a1)&(c).)
A minor may not use fraudulent or altered identification (or someone else’s identification) to enter an establishment licensed to sell alcohol; or to induce the sale or service of alcohol. An adult is also prohibited from allowing a minor to use the adult’s identification to obtain alcohol. (North Carolina Gen. Stat. Ann. Section 18B-302(e)&(f).)
Aiding or abetting. Minors who illegally help another minor to obtain alcohol can be charged with a Class 2 misdemeanor. (North Carolina Gen. Stat. Ann. Section 18B-302(c)(1).) Adults who illegally assist a minor in obtaining alcohol-- including allowing the minor to use the adult’s driver’s license or other identification to obtain alcohol—can be charged with a Class 1 misdemeanor. (North Carolina Gen. Stat. Ann. Section 18B-302(c)(2)&(f).)
Purchase, possession, or consumption by a minor who is 19 or 20. This type of violation is a Class 3 misdemeanor. (North Carolina Gen. Stat. Ann. Section 18B-302(i).)

Exceptions to the Rule

North Carolina recognizes three exceptions to the general rule prohibiting minors from possessing or consuming alcohol.

• Religious participation. A minor may possess and consume wine for sacramental purposes in an organized church. (North Carolina Gen. Stat. Ann. Section 18B-103(8).)
• Employment. Minors may possess, transport, or dispense—but not consume—alcohol during the course of employment in an establishment licensed to sell alcohol. Such employment must also be lawful under North Carolina’s youth employment statutes. (North Carolina Gen. Stat. Ann. Section 18B-302(h).)
• Education.  Minors may possess and consume alcohol under the direct supervision of an instructor, during the course of a licensed and accredited culinary program, when such consumption is a required part of the curriculum. (North Carolina Gen. Stat. Ann. Section 18B-103(11).)

Penalties

Minors who violate the laws against purchase, possession, or consumption; and adults who violate the law against giving alcohol to a minor or allowing a minor to use the adult’s identification to obtain alcohol, will face charges of a Class 1 misdemeanor, which carries the consequences described below.
Convicted offenders will also have their conviction reports sent to the Division of Motor Vehicles. The division will revoke the offender’s license for one year. (North Carolina Gen. Stat. Ann. Section 20-17.3.) If the offender’s license is already suspended, the one year revocation will begin when the current suspension ends.
Adult violators who gave alcohol to a minor or aided a minor in obtaining alcohol may be eligible for limited driving privileges. (North Carolina Gen. Stat. Ann. Section 20-17.3.) Check with your local court clerk to see if this privilege applies to your situation.

Misdemeanor Sentences

North Carolina punishes misdemeanants according to the level (Class) of the crime. Repeat offenders are subject to jail time (not shown).

• Class 1: up to 45 days of “community punishment” (probation), plus the possibility of a fine, to be determined by the judge
• Class 2: up to 30 days of community punishment, plus the possibility of a fine of up to $1,000
• Class 3: up to 10 days of community punishment, plus the possibility of a fine of up to $200. (North Carolina Gen. Stat. Ann. Section 15A-1340.23.)

Selling Alcohol to a Minor

It is illegal in North Carolina to sell or give alcohol to a minor. However, the seller has a defense against having violated this law if:

• the buyer provided state or federal photographic ID showing that the buyer was of legal age to make the purchase, or
• the seller relies on other facts that reasonably indicated at the time of sale that the buyer was older than 21. (North Carolina Gen. Stat. Ann. Section 18B-302(d)(1)&(2).)

Alcohol Screening Tests

If a police officer has probable cause to believe that a minor has consumed alcohol, the officer may require the minor to submit to an alcohol screening test. Such a test may use only devices approved by the North Carolina Department of Health and Human Services. The results of this screen—or a refusal to take such a test—are admissible in court or administrative proceedings. (North Carolina Gen. Stat. Ann. Section 18B-302(j).)

Getting Legal Help

Because local procedures and attitudes towards the North Carolina minor in possession laws vary by community, it is a good idea to consult with a lawyer who is familiar with how these cases are handled in your area. This will give you a better chance of achieving the most favorable outcome under the unique circumstances of your case.

Wake County DWI Attorney

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The firm is expanding to DWI cases so I will start covering some DWI issues.  Below is a great article on Level A1 DWI sentencing.

Top 3 Questions About Level A1 DWI Sentences

Posted on May. 7, 2014, 10:37 am by Shea Denning • 5 comments

The most serious level of misdemeanor DWI is Aggravated Level One, which I generally refer to as Level A1.  A defendant convicted of driving while impaired is subject to sentencing at Level A1 if three or more grossly aggravating factors apply.  G.S. 20-179(c). Typically, defendants sentenced at this level are repeat offenders, though it is possible to reach Level A1 if one drives while impaired with a person under 18 in the vehicle, with a license that is civilly revoked for an earlier DWI charge that did not result in conviction, and, in the process, causes serious injury to another.

A defendant sentenced at Level A1 may be fined up to $10,000 and must be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. G.S. 20-179(f3). The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days.
Because Level A1 is a relatively new level of punishment—it applies to offenses committed on or after December 1, 2011—many litigants, judges, and defendants have questions about the legal requirements for such sentences and how the sentences are administered.
Below are the three questions I hear most often.
1. May the judge credit against a Level A1 sentence the time a defendant spent in inpatient treatment?
Yes. G.S. 20-179(k) allows a judge to credit against a term of imprisonment ordered for any level of DWI, including Level A1, the time a defendant was an inpatient at a treatment facility operated or licensed by the State for the treatment of alcoholism or substance abuse. To be eligible for credit, the treatment must have occurred after the defendant committed the DWI offense for which he or she is being sentenced.
The judge also may order that special probation (in other words, a split sentence) imposed pursuant to a suspended Level A1 sentence be served at a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. The defendant must have been accepted by the facility for admission or commitment as an inpatient and must bear the expense of any treatment unless the judge orders the State to absorb the costs.
2. How much of an active Level A1 sentence will a well-behaved defendant actually serve?
The defendant will serve the maximum term of imprisonment imposed, less four months. A defendant sentenced at Level A1 is not eligible for parole.  The defendant must, however, be released to post-release supervision four months before the expiration of his or her maximum term. No good time credit is being awarded to reduce Level A1 sentences, even though the applicable Division of Adult Correction (DAC) regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time credit at the rate of one day deducted for each day served with good behavior. Though the regulations do not distinguish among levels of DWI, DAC has determined that the credit does not apply to Level A1 sentences.
Thus, regardless of how he or she behaves, a defendant sentenced to 36 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 32 months.  A defendant sentenced to 12 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 8 months imprisonment.
3. May a judge allow a defendant to serve a Level A1 sentence on weekends?
Yes. A judge may order a term of imprisonment for any level of DWI to be served on weekends. G.S. 20-179(s), which applies to all levels of DWI sentencing, provides that if the defendant is ordered to a term of 48 hours or more, he or she must be required to serve 48 continuous hours of imprisonment to receive credit for time served. This means that a judge could order an entire 36-month Level A1 sentence to be served in 48-hour increments.
Split sentences for Level A1 DWIs also may be served on weekends and must likewise be served in 48-hour increments.  Any non-continuous period of imprisonment for a split sentence may only be served in a designated local confinement or treatment facility rather than in a DAC prison.  See G.S. 15A-1351(a).

Getting a Ticket while on a provisional License in NC

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I often get calls from drivers who are under the age of 18 who are driving on a graduated license with limitations as to time and number of passengers.  If this is the case, the typical procedure is to have the case continued until after the driver can get their full license after driving for 6 months.  Failure to do this will result in the limitations being extended an additional 6 months.

Below is a great article by Shea Denning of the the North Carolina School of Government on the limitations and also whether or not the limitations are making an impact on the death rate of young drivers.

Vehicle crashes are the leading cause of death for teenagers in the United States. That’s why states no longer grant unrestricted driver’s licenses to teens once they turn 16, as they did when I was a kid. Instead, states grant driving privileges to teenagers under 18 only after they have been driving under a permit with supervision for a lengthy period of time, and, even then, only by degrees. Driver’s licenses issued to such teens typically restrict nighttime driving and/or the number of minors who may be present in the vehicle for some period of time after initial licensure. While many people readily accept the notion that teens are safer during the graduated licensing period–either because they aren’t driving unsupervised at night, because they don’t have a gaggle of friends in the car, or because they aren’t driving at all given the hassle associated with becoming licensed–they wonder whether the effects vanish once the teens are on their own.
First, let’s review North Carolina’s graduated licensing law.
North Carolina requirements. To obtain a driver’s license in North Carolina, a sixteen-year-old must:

1. Have held a limited learner’s permit issued by NC DMV for at least 12 months;
2. Not have been convicted of a motor vehicle moving violation, a seat belt infraction, or a violation of the law prohibiting use of a mobile phone by drivers under 18 in the preceding six months;
3. Pass a road test administered by NC DMV
4. Have a high school diploma, a GED, or a driving eligibility certificate issued by a school administrator stating that (a) the person is currently enrolled in school and is making progress toward obtaining a high school diploma, (b) a substantial hardship would be placed on the person or his or her family if the person did not receive a certificate, or (c) the person cannot make progress toward obtaining a high school diploma or GED
5. Have completed a driving log detailing a minimum of 60 hours of driving, at least ten of them at night.

G.S. 20-11(d).
Even then, a sixteen-year-old is granted a limited provisional license, which permits unsupervised driving from 5:00 a.m. until 9:00 p.m. and at any time when driving to and from work. When the license holder is driving unsupervised, there may be no more than one passenger under age 21 in the vehicle. This limit does not apply to passengers who are members of the license holder’s immediate family or who live in the same household with the driver. However, if a family member who is under 21 is in the vehicle, no non-family-member passengers who also are under 21 may be in the vehicle.
Failure to comply with the time-of-driving restriction constitutes operating a motor vehicle without a license, a Class 3 misdemeanor. G.S. 20-11(l). Failure to comply with the limitations on the number of passengers is an infraction, punishable by a fine of up to $100.
A sixteen-year-old who has held a limited provisional license for six months may obtain a full provisional license if he or she:

1. Has not been convicted of a motor vehicle moving violation, a seat belt infraction, or a violation of the law prohibiting use of a mobile phone by drivers under 18 in the preceding six months,
2. Has a driving eligibility certificate, a high school diploma or GED, and
3. Has completed a driving log documenting at least 12 hours of driving, six of them at night.

The restrictions on time of driving, supervision, and passengers do not apply to a full provisional licensee. Such drivers are still prohibited from using mobile phones while driving, subject to the limited exceptions in G.S. 20-137.3.
Are teens safer? North Carolina was among the pioneers of graduated licensing, adopting, along with Georgia and Michigan, a full three-tier stage licensing system in 1997. Parents love it, teens tolerate it, and researchers have concluded that North Carolina’s system in particular is associated with a reduced crash risk for sixteen-year old drivers in the years following initial licensure. See Masten & Foss, Long-term effect of the North Carolina graduated driver licensing system on licensed driver crash incidence: A 5-year survival analysis, 42 Accident Analysis & Prevention, 1647-1652 (stating that the findings “provide further evidence that crashing among young drivers is more commonly the result of what they have not yet learned than it is the result of the ‘foolishness of youth.’”)
Payback at 18? One comprehensive study has, however, associated graduated licensing with an increase in fatal crashes among 18-year-olds. See Masten, Foss & Marshall, Graduated Licensing and Fatal Crashes Involving 16- to 19-Year-Old Drivers, 306/10 JAMA, 1098-1103 (concluding based on nationwide examination of fatal crash data that stronger graduated licensing programs were associated with substantially decreased fatal crash incidence for 16-year-old drivers but somewhat higher fatal crash incidence for 18-year-old drivers). The studies’ authors posited that the amount learned under a graduated licensing program might not compare to what teens previously learned through experience alone. They noted that supervised driving is “co-driving, and some important lessons of experience, such as the need for self-regulation and what it means to be fully responsible for a vehicle, cannot be learned until teens begin driving alone.” Another potential explanation is that graduated licensing leads some teens to skip the supervised driving component altogether, waiting until they are 18 to apply for and be issued an unrestricted license.
In any event, the authors of the study cautioned that fatal crashes (the only type of crash data for which evidence is available nationally) differ in significant ways from less serious crashes. For example, fatal crashes are more likely to involve high-risk behavior such as alcohol use and excessive speeding. Because graduated licensing programs are designed to “improve learning among novice drivers and to protect them from the consequences of their inexperience as they learn,” rather than to “control the excessive behaviors often involved in fatal crashes,” graduated licensing should only influence fatal crashes caused by lack of understanding versus misbehavior. Ultimately, the study concludes that more research is required to determine what accounts for the increase among 18-year-olds and how changes to licensing policy might reduce this association.

New Traffic Laws

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There are several new laws  being considered this legislative session that will affect drivers.  Below are a few of interest.

Ramp meter violation created.

This session law contains several changes

involving the state Department of Transportation. Of direct relevan

ce to criminal law, section 10

amends G.S. 20-4.01 to define “ramp meter” as a traffic control device that consists of a circular red

and circular green display placed at a point along an interchange entrance ramp. New G.S. 20-158(c)(6), effective for offe

nses committed on or after December 1, 2014, provides that when a

ramp meter is displaying a circular red display, vehicles facing the red light must stop. When displaying green, a vehicle may proceed for each lane of traffic facing the meter. When the display is dark or not red or green, a vehicle may proceed without stopping. A violation of the subdivision is an infraction without assessment of driver’s license points or insurance surcharge.

Texting While Driving:

The Legislature is considering changing Texting While Driving from having no points to a "Serious Infraction" that will carry both driving points and insurance points.

Mopeds:

Currently, Mopeds are not required to be registered if they have fewer than 50 CCs.  Under the proposed law, all mopeds will be required to be registered thereby causing the owner to pay registration fees and property taxed on a yearly bases.  In addition, they will also have to be inspected each year.

Portable Breathalizer Test (PBT)

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For some time now, PBT test have not been admissible to determine if a person is driving while impaired in North Carolina.  The test is only allowed to be used to determine if the impairing substance is alcohol.  Below is a great article on what the test can be used for and what it cannot be used for in North Carolina.

The Old Portable Breath Test Ain’t What She Used to Be

Posted on September 16, 2014 by Shea Denning • 1 comment

Portable breath tests don’t go very far anymore in proving whether a suspect is impaired from alcohol.  That’s because the legislature amended G.S. 20-16.3(d) in 2006 to provide that the alcohol concentration results from such a test, termed an alcohol screening test by statute, are not admissible in court— not even for purposes of determining probable cause—and may not be relied upon by a law enforcement officer. An officer may rely upon, and a court may receive evidence of, whether the result from such a test was positive or negative. But since a positive result merely establishes the presence of alcohol, and driving after drinking by a person who is over 21 is not a crime, such evidence doesn’t add much proof of impairment.
The court of appeals applied this rule in two cases decided today:  State v. Overocker and State v. Townsend. In Overocker, the court concluded that evidence that a defendant smelled “faint[ly]” of alcohol, had consumed drinks at a bar, registered a positive result on a portable breath test and backed over a motorcycle in a parking lot that was parked illegally behind his sports utility vehicle were not sufficient to establish probable cause that the defendant was driving while impaired. In Townsend, the court determined that though the trial court erred in admitting the numerical results of the portable breath test at a pre-trial hearing on the defendant’s motion to suppress, other evidence was sufficient to establish probable cause that the defendant was driving while impaired, and the violation did not entitle the defendant to a new trial.
Somewhat oddly, the alcohol concentration results of a portable breath test are admissible for purposes of establishing probable cause in the one context in which evidence of a positive or negative result would be just as probative, namely to prove any of the several zero tolerance offenses under State law.  See G.S. 20-138.2A(b2), 20-138.2B(b2), 20-138.3(b2).  It is unclear why the General Assembly amended G.S. 20-16.3 to preclude reliance upon and admission of alcohol concentration results from portable breath testing instruments at pre-trial hearings for other offenses. The amendments were part of an Act that otherwise facilitated the State’s prosecution of impaired driving offenses and broadened the rules governing the admissibility of evidence by, for example, approving the admission of expert testimony regarding the result of a Horizontal Gaze Nystagmus (HGN) test when the test is administered by a person trained in HGN.  Presumably the reliability of portable breath test results was the General Assembly’s concern.  See, e.g.,  People v. Aliaj, 36 Misc. 3d 682, 693 (N.Y. Sup. Ct. 2012) (noting that “tests given in the field are prone to multiple possibilities for interference which may not exist at police stations” including varying lighting conditions, radio interference, temperature, and the location’s physical layout).
Former G.S. 20-16.3 (2005), like the current statute, required that tests be made on approved devices and in accordance with applicable regulations and permitted the admission of alcohol concentration results only for purposes of determining probable cause.  Other courts have considered those safeguards sufficient. See, e.g., Der v. Connolly, 666 F.3d 1120, 1131 (8th Cir. 2012) (noting that while a portable breath test lacks sufficient reliability to be admitted as substantive evidence, it is admissible to establish probable cause). North Carolina is not, however, alone in further limiting the use of such evidence.  See Greene v. Commonwealth, 244 S.W.3d 128, 134-35 (Ky. Ct. App. 2008) (concluding that though the results of a portable breath test are inadmissible to prove guilt or for sentencing purposes, the pass/fail result of a portable breath test is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress). Whatever the legislature’s reasoning, the limits exist and they unquestionably diminish the probable value of evidence from portable breath tests.
Overocker highlights the effect of this limitation. Though there was no dispute that the defendant in Overocker had consumed alcohol, he showed no outward signs of impairment and performed satisfactorily on field sobriety tests.  Indeed, he only came into contact with law enforcement officers because of a traffic accident that was not his fault.  Because of the rule in G.S. 20-16.3(d), no evidence appears in the record or was introduced in court of the alcohol concentration result that registered on the portable breath test. One might speculate, based on the officer’s subsequent arrest of the defendant, that the result approached a minimum level of 0.08.  If there was in fact such a result, and it had been admitted, one might have expected a different ruling from the trial court.  Under G.S. 20-16.3(d), however, the precise results were inadmissible, and the positive result revealed nothing that was not already known, i.e. that the defendant had consumed alcohol. Thus, there was no probable cause for the arrest.