DWI Aggravating Factors

www.kisslinglaw.com

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(4)        Driving by the defendant while his driver's license was revoked.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

Failure to Maintain Lane Control

www.kisslinglaw.com

Many Driving While Impaired charges start with the officer claiming the driver did not maintain lane control.  Below is a great article by Shea Denning on the issue.

Officer Fife is driving one car length behind Briscoe Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car touch the fog line that borders Darling’s lane to the right. Darling drives on the fog line for a couple of seconds before his tires re-enter the unmarked portion of the lane. A half mile later, Darling’s tires again touch the fog line for a few seconds.
Officer Fife is driving one car length behind Charlene Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car cross over the fog line that borders Darling’s lane to the right. Darling immediately moves her car back into the unmarked portion of the lane.
Officer Fife is driving one car length behind Mitch Darling at 9 a.m. on a cold winter morning when he sees the tires on the right side of Darling’s car cross over the fog line that border’s Darling’s lane to the right.  After a few seconds, Darling moves his car back into the unmarked portion of the lane. Officer Fife is aware that the road the two are traveling is icy in spots.
Officer Fife is a stickler for compliance with motor vehicle laws.  He believes it is his duty to stop anyone who commits a traffic offense, no matter how minor. Which Darling or Darlings may he lawfully stop, and why?
G.S. 20-146(d)(1) requires that vehicles “be driven as nearly as practicable entirely within a single lane.” Thus, the first issue for Officer Fife’s consideration is whether the line marking the lane is within or outside of the driver’s lane. A famous law professor recently characterized this question as being akin to a mathematician’s consideration of closed or open intervals and noted that there was “deep disagreement among courts on this question.” Since I’m no mathematician, and this is North Carolina, I’ll avoid the mathematical comparisons and in favor of Fife, the Darlings, and North Carolina law.
Driving on the lane line. Merely touching the lane dividing line or driving on top of it apparently does not run afoul of G.S. 20-146(d)(1). The North Carolina court of appeals determined in State v. Peele, 196 N.C. App. 668 (2009), that the “float[ing]” of a driver’s truck to the dotted line and back to the fog line on a single occasion did not provide reasonable suspicion of a traffic violation. In State v. Kochuck, 366 N.C. 549 (2013) (per curiam, adopting dissenting opinion below), the court considered the totality of the circumstances and relied upon precedent governing weaving within a lane to determine that reasonable suspicion supported the stop of the defendant’s vehicle after the vehicle “momentarily crossed the right dotted line once while in the middle lane” and “later drove on the fog line twice.” See Kochuck, __ N.C. App. ___, ___ 741 S.E.2d 327, 329 (2012) (Beasley, J., dissenting).
Driving over the lane line.  Crossing the line demarcating a lane, even once, does provide reasonable suspicion supporting a traffic stop. In State v. Osterhoudt, ___ N.C. App. ___, 731 S.E.2d 454 (2012), for example, the court held that a trooper’s observation of a defendant driving over a double yellow line when turning right provided a reasonable basis for concluding that the defendant violated G.S. 20-146(d)(1).  Similarly, in State v. Hudson, 206 N.C. App. 482 (2010), the court held that an officer had reasonable suspicion to stop the defendant’s vehicle after seeing his truck twice cross the center and fog lines.
As near as practicable.  As previously noted, G.S. 20-146(d)(1) requires that a vehicle be driven “as nearly as practicable entirely within a single lane.” Violation of this provision constitutes negligence per se in a civil action based on injuries or damages resulting from a vehicle’s failure to stay within its lane. A defendant in a civil action may rebut the inference of negligence in such an action by showing that the violation resulted from causes other than his or her own negligence, such as such as the presence of ice, a person, an animal, or another obstruction in the roadway. While no criminal case in North Carolina analyzes the “as near as practicable” qualifier, it seems reasonable to equate it to the same types of evidence that rebut the presumption of negligence in a civil action.
The Court of Appeals of Idaho in State v. Neal, __ P.3d __ (October 15, 2014), recently construed the meaning of “as nearly as practicable” under its lane law in a similar manner. In rejecting the defendant’s argument that Idaho’s statute permitted all sorts of minor deviations from one’s lane, the court explained:

In our view . . . the term “practicable” is unambiguous. It is defined as “able to be done or put into practice successfully,” NEW OXFORD AMERICAN DICTIONARY 1338 (2001), and as “feasible in the circumstances,” BLACK’S LAW DICTIONARY 1172 (6th ed.1990). These definitions are not consistent with Neal’s contention that “as nearly as practicable” creates a safe harbor permitting a person to occasionally leave his lane, without any apparent need, because doing so falls within the wide spectrum of normal driving behavior. We need not, at this juncture, describe all of the weather conditions, road conditions, behavior of other drivers, or other hazards that might justify a driver in leaving the lane. Here, there is simply nothing in the record to show that Neal left his lane because staying within his lane was not “practicable.”

 Back to the Darlings. 
Officer Fife has no reasonably objective basis for stopping Brisco Darling as driving on the lane lines is not a violation of G.S. 20-146(d)(1).
Charlene Darling should prepare for the blue lights as Officer Fife’s observations provide reasonable suspicion for a stop.
As for Mitch Darling, reasonable minds could disagree. Officer Fife does not know whether Mitch Darling drove outside of his lane because he skidded on ice. Arguably, Officer Fife could cross the relatively low reasonable suspicion threshold based on his observation of the tires crossing the fog line, without considering whether Mitch could have prevented that from occurring. On the other hand, has anyone seen a North Carolinian drive on ice?  If all Mitch did was briefly leave his lane, he might deserve commendation rather than citation.

Expired Registration

www.kisslinglaw.com

Great article on changes to registration in NC and dealing with tickets for expired registration.

Gray is in.  And DMV knows it.   
The News and Observer’s Road Worrier, Bruce Siceloff, reports that DMV is dropping its colorful registration renewal stickers in favor of neutral gray ones—and saving more than $70,000 a year as a result.  A single gray sticker featuring both the month and year will replace the separate month and year stickers that now adorn North Carolina plates.
Siceloff’s report got me thinking about those pesky registration violations.  C’mon, you know you’ve had one.  Or someone in your family has.
Expired tags.  Indeed, there were nearly 230,000 charges in 2014 for willfully displaying an expired registration plate on a vehicle. Violation of this provision is a Class 3 misdemeanor.  G.S. 20-111(2).  This is by far the most common type of registration violation and is the second most commonly charged criminal offense in the state (right behind speeding).
But there are several other ways in which people run afoul of the vehicle registration statutes.
Revoked registration. G.S. 20-111(2) also makes it a Class 3 misdemeanor to display or possess a registration card, certificate of title, or registration plate that has been canceled, revoked or suspended.  Such suspensions can result from failure to pay tolls due to the NC Turnpike Authority and failure to pay a fine imposed under G.S. 20-217 for passing a stopped school bus, among other misdeeds. More than 36,000 defendants were charged with this variety of registration offense in 2014.
Fictitious or altered registration. Possessing or displaying a registration card, certificate of title, or registration plate that you know has been altered or that you know is fictitious also is a Class 3 misdemeanor. There were more than 26,000 charges for this offense last year.
No registration. Driving a vehicle on a highway that is not registered or allowing someone else to so drive a vehicle you own also is a Class 3 misdemeanor. G.S. 20-111(1). More than 20,000 defendants were charged with this offense in 2014.  It likewise is unlawful to fail to display a current registration plate when driving a vehicle on a highway or to allow someone else to so drive a vehicle you own. Charges for this offense are far less common than those previously mentioned. There were 3,166 such charges in 2014.
Lending a plate. It is unlawful to give, lend or borrow a license plate for use on a vehicle other than that for which it was issued. G.S. 20-111(3). Both the giver and the recipient are guilty of a Class 3 misdemeanor. When a license plate is found being so improperly used, it must be canceled. There were nearly 4,000 charges for this offense last year.
Keep it clean.  G.S. 20-63(g) generally prohibits the alteration, disguise or concealment of numbers on a registration plate. A person who does any of the following commits a Class 2 misdemeanor:

• Willfully mutilates, bends, or twists a registration plate
• Causes a registration plate to be covered or partially covered by a bumper, light, spare tire, tire rack, strap, or other device
• Paints, enamels, embosses, stamps, prints, perforates, or alters a registration plate or its figures or letters
• Deposits oil, grease, or another substance on the plate for the purpose of making dust stick to it
• Defaces, disfigures, changes, or attempts to change a letter or figure on a registration plate
• Displays a registration plate in other than a horizontal upright position

In 2014, there were 647 charges for having a registration plate improperly attached, and 394 charges for other misdemeanor violations of G.S. 20-63(g).
License plate frames and covers. G.S. 20-63(g) also regulates license plate frames and covers.  A motor vehicle operator who does any of the following commits an infraction:

• Intentionally covers any number or registration renewal sticker on a registration plate with material that makes the number or registration renewal sticker illegible
• Covers a registration plate with any frame or transparent, clear, or color-tinted cover that makes a number or letter in the vehicle’s registration, the State name on the plate, or a number or month on the registration renewal sticker illegible
• Willfully covers or causes to be covered any part of a registration plate by a device designed to prevent or interfere with the taking of clear photograph of the registration plate by a traffic control or toll collection system

Nearly 1,000 defendants were charged with infractions under G.S. 20-63(g) in 2014.
Failure to sign registration card. The next time you get in your car, open your glove box, and pull out your registration. Is it signed? If it isn’t, you’re in violation of G.S. 20-57(c), which requires that the owner of a vehicle sign the registration card with pen and ink. Registration cards must be carried in the vehicle to which they refer at all times and must be displayed upon an officer’s demand. Violation of these provisions is an infraction. Nearly 1,500 defendants were cited last year for failure to sign their registration cards, and more than twice that many for failure to carry them.

Can a Misdemeanor Conviction for Driving While Impaired Be Expunged?

www.kisslinglaw.com

Great article on getting an DWI conviction expunged.  Thank you as always to the NC school of government.

I have been working on a theory of everything . . . for expunctions. It’s a small corner of the criminal justice universe, but a critical one for people with past convictions. The subject can be maddeningly complex, at times a seemingly impenetrable black hole. I have been trying to master the mysteries of our expunction statutes in updating my 2012 Guide to Relief from a Criminal Conviction (which you can find here, but beware of subsequent changes in the law).
Without further physics puns, here’s one of the questions I’ve looked at: Can a person expunge a misdemeanor conviction under G.S. 15A-145.5 for driving while impaired (DWI)? As the statute is currently worded, the answer is yes.
Enacted in 2012, G.S. 15A-145.5 allows for the expunction of older convictions for “nonviolent” misdemeanors and felonies. The meaning of a “nonviolent” offense is determined by what it is not. G.S. 15A-145.5(a) defines an offense as “nonviolent” if it is not a Class A through G felony, a Class A1 misdemeanor, or one of a number of offenses specified in the statute, such as an offense requiring sex offender registration. Consequently, Class H and I felonies and Class 1 through 3 misdemeanors can be expunged as long as they are not among the offenses specifically excluded from relief. See generally Kyprianides v. Martin, ___ N.C. App. ___, 763 S.E.2d 17 (2014) (unpublished) (finding that because conviction for misdemeanor cruelty to animals was not Class A1 misdemeanor and did not fall into excluded categories, it could be expunged under G.S. 15A-145.5).
A misdemeanor DWI conviction is not on the list of excluded offenses. The determinative question then is whether a DWI is a Class 1 misdemeanor or lower. Unlike most misdemeanors, a DWI does not have a specific classification, but in other contexts the North Carolina courts have treated it as a Class 1 misdemeanor. See State v. Armstrong, 203 N.C. App. 399 (2010); State v. Gregory, 154 N.C. App. 718 (2002). Under these decisions, a DWI would be eligible for expunction under G.S. 15A-145.5 if the petitioner meets the other statutory conditions. (Note that Gregory, on which Armstrong relies, was decided before cases holding that an offense’s maximum sentence is determined by the maximum sentence that the particular defendant could receive, not the maximum for the offense generally. See Blakely v. Washington, 542 U.S. 296 (2004). A DWI punished at Levels Three, Four, or Five carries a maximum sentence from sixty days to six months and might be considered a Class 2 misdemeanor. See G.S.14-3(a) (offense without specific classification is considered Class 2 misdemeanor if maximum punishment is more than thirty days and not more than six months).)
Only convictions that are at least fifteen years old may be expunged under G.S. 15A-145.5, a far longer waiting period than for other expunctions under North Carolina law. The length of this waiting period limits the effect of an expunction on a later DWI prosecution. A fifteen-year-old DWI conviction cannot be used as the basis for a felony prosecution of habitual DWI or as a grossly aggravating factor in a misdemeanor DWI prosecution because the applicable statutes set a shorter “look-back” period for prior convictions. See G.S. 20-138.5 (for habitual DWI, look-back period is ten years); G.S. 20-179(c)(1) (for grossly aggravating factor, look-back period is seven years). An expunction would limit use of a prior DWI conviction as a regular aggravating factor, which affects whether a person receives a Level Three, Four, or Five punishment for a misdemeanor. See G.S. 20-179(d)(5) (for regular aggravating factor, prior DWI conviction may be more than seven years old).
G.S. 15A-145.5 also differs from most other expunction statutes in that it appears to give the court some discretion. Most expunction statutes provide that the court “shall” or “must” grant an expunction petition if the court finds that all of the statutory requirements have been met. G.S. 15A-145.5(c) states that the court “may” grant an expunction if the statutory requirements are satisfied. The statute does not specify the possible grounds for denial beyond the statutory requirements, but an order denying a petition must include a finding “as to the reason for the denial.”
A pending House bill, H 273, would revise G.S. 15A-145.5, among other statutes, to disallow expunctions of DWI convictions regardless of their age. The bill, which would apply to petitions filed or pending on or after July 1, 2015, has passed the House and is before the Senate. Two bills introduced in the Senate, S 362 and S 626, would shorten the waiting period to five years for expunction of a misdemeanor under G.S. 15A-145.5. The Senate bills would not change the current treatment of DWI convictions and thus would have the effect of allowing expunctions of DWI convictions before the end of the look-back periods discussed above. These bills did not pass the Senate before the crossover deadline but might be taken into account when the House bill is considered.
Another issue concerns the potential treatment of a DWI sentenced at Aggravated Level One, which carries a sentence of up to three years. See G.S. 20-179(f3). Although the maximum sentence is beyond the typical outer limit for misdemeanors (two years), current law may treat the offense as  a Class 1 misdemeanor. The pending bills do not differentiate among the different DWI levels.
In future posts I will address other common expunction questions as well as any changes enacted by the General Assembly.

Proposed New DWI Laws in North Carolina

www.kisslinglaw.com

Here is a post about new DWI laws that are being proposed by the NC legislature which will put even more restrictions on persons convicted of DWI in North Carolina.

Last week was crossover deadline at the General Assembly–a major event for lawmakers, legislative staffers, lobbyists and policy wonks. If you don’t fall into any of these categories, the deadline may not have greatly affected your work week. But because crossover marks (at least theoretically) the deadline by which non-revenue bills must pass one chamber of the legislature in order to be considered by the other during the remainder of the session, it is a good time to take stock of pending legislation. A complete listing of bills that met crossover is available here. Several of these bills would significantly amend laws related to impaired driving.
H 31. 0.00 Alcohol Restriction—All DWI. As the short title suggests, this bill amends G.S. 20-19(c3)(1) to require the North Carolina Division of Motor Vehicles to impose a 0.00 alcohol concentration restriction on the driver’s license of any person whose license is restored following a conviction for impaired driving under G.S. 20-138.1 or a similar offense in another state. A first-time offender currently may have his or her license restored with a restriction prohibiting the person from driving with an alcohol concentration of 0.04 or greater. H 31 also amends the ignition interlock statute, G.S. 20-17.8(b), to require that any person whose license is restored subject to an ignition interlock restriction be prohibited from driving with an alcohol concentration of greater than 0.00. Under current law, a person required to have ignition interlock because of an alcohol concentration of 0.15 or more, and not because of a previous conviction, is subject to a restriction that he or she not drive with an alcohol concentration of 0.04 or greater. The bill applies to offenses committed on or after July 1, 2016. A similar bill, S 308, was introduced in the Senate.
H 32. Amend Habitual DWI. This bill amends G.S. 20-138.5 to provide that a person commits the offense of habitual impaired driving if he or she drives while impaired and has been convicted of two or more impaired driving offenses within ten years of the date of the offense. Current G.S. 20-138.5 requires that a person have been convicted of three impaired driving offenses within ten years in order to commit the offense of habitual impaired driving by again driving while impaired. If enacted, H 32 will be effective for offenses committed on or after December 1, 2015.
H 173. Omnibus Criminal Law Bill. In addition to amending numerous other criminal law provisions, this bill rewrites G.S. 20-38.7(c), which currently provides that the sentence imposed by a district court in an implied consent case is vacated upon the defendant’s giving notice of appeal to superior court. Thus, under current law, a new sentencing hearing must be held any time an implied consent case is remanded from superior court to district court. The bill eliminates from G.S. 20-38.7(c) the language vacating the sentence immediately upon the defendant’s giving notice of appeal. It instead provides that when an appeal is withdrawn or a case is remanded back to district court, the sentence is vacated and the district court must hold a new sentencing hearing and consider any new convictions unless (1) the defendant withdraws his or her appeal before the case has been calendared in superior court and the prosecutor certifies to the clerk in writing that there are no new sentencing factors, or (2) the defendant withdraws his or her appeal after the case is calendared in superior court, the case is remanded by order of the court, and the prosecutor certifies to the clerk in writing that he or she consents to the withdrawal and has no new sentencing factors to offer the court.
H 357. Toxicology Reports/District Court. Is it Thursday yet? Because this is a throwback to 2009. This bill undoes the district court notice and demand procedures enacted by the General Assembly following the Supreme Court’s opinion in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). It enacts new G.S. 8-58.21, which provides that a toxicology report that is signed and sworn to by the person performing the analysis is admissible in district court without the testimony of the analyst. For the report to be admitted, the district attorney must satisfy certain criteria, including serving notice of the report and his or her intent to introduce it on the defendant or his or her attorney. The bill provides that the new provisions, effective for trials commencing on or after October 1, 2015, shall not “be construed as an abrogation of any State or federal constitutional or statutory right otherwise applicable in criminal cases with the exception of the right to a jury trial in district court.” If the bill passes, the courts will have the last word on that matter.
H 924. Highway Safety/Salary Changes. G.S. 20-139.1(b5) currently requires that a law enforcement officer who has initiated chemical testing of a person charged with a death or serious injury by vehicle offense under G.S. 20-141.4 request that the person provide a blood sample for analysis. This bill amends G.S. 20-139.1(b5), effective for offenses committed on or after December 1, 2015, to clarify that this requirement applies only within a relevant time after the driving. “Relevant Time after the Driving” is defined in G.S. 20-4.01(33a) as “any time after the driving in which the driver still has in his body alcohol consumed before or during the driving.” This bill makes several other changes to motor vehicle laws that are unrelated to impaired driving.

IMPLIED CONSENT TO BLOOD TEST

www.kisslinglaw.com

North Carolina's Implied Consent law requires the arresting officer to give certain warnings before taking a breath test.  Below is a great article on how that apples to blood test taken with and without a warrent.
As always, thanks to Shea Denning for her great writing.

In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine.  In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes.  If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent.  None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.

Purpose of Implied Consent Statutes. Implied consent laws were enacted in North Carolina, as in the other forty-nine states, to make it easier for the State to gather reliable chemical evidence of impairment while, at the same time, avoiding potentially violent citizen-police confrontations. If the State was required to obtain a search warrant in every impaired driving case to justify the search of the defendant’s breath, blood, or other bodily fluids, DWI investigations would take more time. If there was no penalty for a suspect’s refusal to cooperate with such testing, compliance presumably would drop.  And if law enforcement officers were required to physically force suspects to comply with nonconsensual testing in every case, one might expect an increase in physical resistance from suspects.
North Carolina’s implied consent statutes require that a suspect be notified of certain rights before being asked to submit to testing.  A suspect must be informed that (1) she may refuse, but her license will be revoked; (2) the test results or refusal will be admissible at trial; (3) certain results will trigger an immediate license revocation; (4) she may seek her own test, and (5) she may call an attorney for advice and select a witness to view testing, but testing may not be delayed for more than 30 minutes. This notice is designed to incentivize the suspect’s compliance as well as to satisfy due process.  North Carolina’s courts have held that the results of an implied consent test carried out without the defendant having first been advised of his implied consent rights are inadmissible. State v. Williams, ___ N.C. App. ___, 759 S.E.2d 350 (2014).
Search warrants. But implied consent testing isn’t the only way for the State to gather chemical evidence of impairment. When a suspect refuses to be tested, or is incapable of refusing, a law enforcement officer may apply to a magistrate for a search warrant that authorizes the withdrawal of the defendant’s blood for testing. And, though it seldom does so, the State may forego implied consent altogether, opting instead to seek a search warrant for blood at the outset of its investigation. When an officer swears to facts that establish probable cause that evidence of an impairing substance is present in the bodily fluid sought from the person and that the presence of such an impairing substance is evidence of a crime, a search warrant properly may issue. Search warrants for blood in DWI cases typically are issued on form AOC-CR-155. Warrants in this form direct law enforcement officers to “take the person named in the application to a physician, registered nurse, emergency medical technician or other qualified person to obtain sample(s) of blood and/or urine described in the application from the person named in the application” and “to seize the sample(s).”
Implied consent procedures don’t apply when there is a search warrant. Implied consent procedures don’t govern the withdrawal of a suspect’s blood pursuant to a search warrant. Thus, there is no requirement that a suspect be advised of the implied consent rights codified in G.S. 20-16.2 before a search warrant for blood is issued.
Why? As I noted earlier, implied consent statutes are primarily designed to facilitate the gathering of chemical evidence—not to stymie it. Executing a search warrant for the withdrawal of a defendant’s blood remains a viable alternative option for obtaining such evidence.  Indeed, the implied consent statutes themselves recognize this. See G.S. 20-139.1(a) (“This section does not limit the introduction of other competent evidence as to a person’s alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.”) Moreover, once a neutral, detached judicial official has issued a search warrant, many of the concerns addressed by the implied consent notice are no longer valid. The suspect’s consent is unnecessary. The license revocation provisions for willful refusal do not apply. The suspect has no need to consult an attorney regarding his or her consent, as the suspect no longer has a choice in the matter.
But what about the definition of chemical analysis? G.S. 20-16.2(a) requires that “[b]efore any type of chemical analysis is administered, the person charged shall be taken before a chemical analyst” who must advise the person of his/her rights.  The term “chemical analysis” is defined as a breath, blood, or urine test “performed in accordance with G.S. 20-139.1.”  G.S. 20-4.01(3a).  Even though blood tests performed pursuant to a search warrant are performed in accordance with G.S. 20-139.1, the State routinely relies on the provisions of G.S. 20-139.1 in admitting such results into evidence.
Plus, there’s footnote in Williams, ___ N.C. App. at  ___, 759 S.E.2d at 354 n.1, stating that “upon a defendant’s refusal to provide a blood sample as requested, law enforcement may seek a warrant to obtain the blood sample for testing.  N.C.G.S. § 20-139.1(b5).”  Doesn’t that mean that blood draws pursuant to search warrants subject to the implied consent procedures?
Warrant searches are different. Searches pursuant to a search warrant are constitutionally permissible and are authorized by Article 11 of the Criminal Procedure Act. Thus, unlike implied consent testing, there was no need for the General Assembly to enact statutes permitting and regulating the issuance and execution of such warrants in Chapter 20 cases. The inapplicability of implied consent warnings to search warrant searches, for the reasons discussed above, provides evidence that the General Assembly did not in fact attempt to separately regulate such searches in DWI cases.
As for footnote 1 of Williams, G.S. 20-139.1(b5) was cited because Williams involved a DWI and a fatality. G.S. 20-139.1(b5) addresses subsequent testing in DWI cases generally, requiring that a suspect be re-advised of his implied consent rights before being requested to submit to a subsequent chemical analysis under the implied consent procedures. It refers to the issuance of search warrants only for cases involving charges of death or serious injury by vehicle, requiring in such cases that a law enforcement officer seek a warrant to obtain a blood sample if the person is charged with a violation of G.S. 20-141.4 and there is probable cause to believe the offense was alcohol-related. In the routine DWI case, the matter of whether to apply for a search warrant is left to the officer’s discretion.
Thus, the citation of G.S. 20-139.1(b5) in Williams does not signify that advisement of rights is required before a search warrant for a defendant’s blood is executed.

DWi and gun possession

www.kisslinglaw.com

Below is a great article on the effects of a DWI in NC to your ability to possess a fire arm.  As always, thanks to Shea Denning at the school of government.

The maximum punishment for driving while impaired in violation of G.S. 20-138.1 increased from two to three years in 2011. As a result, defendants convicted of misdemeanor DWI and sentenced at the most serious level—Aggravated Level One—are prohibited from possessing firearms by federal law. That’s because federal law prohibits firearm possession by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year, though state law misdemeanors that are punishable by a term of imprisonment of two years or less are excluded from this category of disqualifying convictions. Because North Carolina law sets out a single offense of driving while impaired, which may be punished at varying levels, rather than six separate offenses, there is a question as to whether any defendant convicted of misdemeanor DWI on or after December 1, 2011 may lawfully possess a firearm, regardless of the level at which the defendant was actually punished.

Federal gun law. The federal law colloquially referred to as the felon-in-possession statute is 18 U.S.C. § 922(g)(1).  See Schrader v. Holder, 831 F. Supp. 2d 304, 309 (D.D.C. 2011) aff’d, 704 F.3d 980 (D.C. Cir. 2013). That label is a misnomer, however, as misdemeanor convictions punishable by more than two years imprisonment under state law also disqualify a person from possessing a firearm. Id. Section 922(g)(1) makes it unlawful for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess a firearm. Another provision, 18 U.S.C. § 921(a)(20), defines “crime punishable by imprisonment for a term exceeding one year” to exclude “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Thus, for defendants convicted of misdemeanors under state law, the question of whether they are disqualified from possessing a firearm under 18 U.S.C. 922(g)(1) is determined by whether the misdemeanor for which they were convicted carried a maximum punishment of more than two years. If so, the person is disqualified.  (A separate provision of federal law, 18 U.S.C. § 922(g)(9), prohibits firearm possession by a person who has been convicted of a misdemeanor crime of domestic violence. That provision is not tied to a determination of the maximum punishment that could have been imposed for the crime, and is not discussed herein.)
State DWI law. G.S. 20-138.1 proscribes the conduct known as DWI in North Carolina.  A person who (1) drives (2) a vehicle (3) on a street, highway, or public vehicular area within the State, (4) while under the influence of an impairing substance commits the offense of misdemeanor DWI.  The person’s relative culpability is sorted out at sentencing, based largely on whether the person (1) had other DWI convictions within the previous seven years; (2) had a license that was already revoked for DWI; (3) seriously injured another person; and/or (4) had a child or disabled person in the vehicle when he or she drove. See G.S. 20-179(c). In superior court, the State must notify the defendant in writing and before trial of its intention to prove any aggravating factor, including the four grossly aggravating factors previously mentioned.  The existence of one or more grossly aggravating factors increases the potential punishment a defendant faces.  If three or more grossly aggravating factors are found, the defendant is punished at Aggravated Level One, and may receive up to three years’ imprisonment. If two grossly aggravating factors are found, the defendant is punished at Level One, and may receive up to two years’ imprisonment.  Levels Two through Five carry lesser maximum punishments.
Because G.S. 20-179 effectively requires a prosecutor in superior court to plead applicable aggravating factors, and requires that such factors, other than the fact of a prior conviction, be proved to the jury beyond a reasonable doubt, questions regarding whether G.S. 20-138.1 and G.S. 20-179 define one or six offenses are, in most circumstances, academic.  The federal felon-in-possession law is, however, an exception.  If there are six separate DWI offenses, then only a DWI conviction punished at Aggravated Level One disqualifies a defendant from possessing a firearm.  If there is but one crime of DWI that carries a maximum punishment of three years, then any conviction for a DWI committed December 1, 2011 or later might be viewed as disqualifying 
disqualifiesa defendant from possessing a firearm. See Binderup v. Holder, 2014 WL 4764424 (E.D.Pa. Sept 25, 2014) (unpublished op.) (“The cases discussed above demonstrate that the phrase “punishable by”, as utilized in § 921(a)(20) and § 922(g)(1), concerns the maximum . .  potential . . . term of imprisonment applicable to a particular prior state-law conviction.”).
It seems to me that there are reasonable arguments to be made both ways.
The Fourth Circuit’s analysis in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), of whether convictions under the State’s structured sentencing laws qualify as offenses “punishable by imprisonment for more than one year,” tends to support the view that only a defendant punished at Aggravated Level One is disqualified under § 922(g)(1). The Simmons court concluded that the defendant’s conviction for a Class I felony offense for which he could not have received a sentence exceeding eight months’ community punishment given his lack of criminal history was not a conviction for an offense punishable by imprisonment for term exceeding one year, even though a defendant with a certain number of prior criminal convictions could have received a sentence exceeding twelve months’ imprisonment. The court explained that the “mere possibility that Simmons’s conduct, coupled with facts outside the record of conviction, could have authorized a conviction of a crime punishable by more than one year’s imprisonment cannot and does not demonstrate that Simmons was actually convicted of such a crime.”  Id. at 244 (internal quotations omitted). The Fourth Circuit in United States v. Carter, 471 Fed. Appx. 136 (4th Cir. 2012) (unpublished op.), applied Simmons in determining that a defendant’s prior convictions for drug offense classified as felonies under North Carolina’s structured sentencing regime were not offenses punishable by a term of imprisonment exceeding one year for purposes of the federal felon-in-possession statute. 
Simmons relied upon the fact that the State had to prove the existence of aggravating factors sufficient to warrant the imposition of an aggravated sentence under the Structured Sentencing Act.  That also is true under the sentencing scheme set forth in G.S. 20-179 for DWI.
May the federal government categorically ban persons convicted of DWI from possessing a firearm?
The right to bear arms. The United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), held that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, including self-defense within the home.  In recognizing an individual right to keep and bear arms, however, the court was careful to note that it did not intend to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” as well as other long-enshrined restrictions.  See also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality op.) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ . . . . We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation [of the Second Amendment by the Fourteenth Amendment] does not imperil every law regulating firearms.”). Courts considering post-Heller challenges to § 922(g)(1) have relied upon this commentary in upholding the provision as constitutional.
Are misdemeanants different? The District of Columbia Circuit Court of Appeals in Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013), considered plaintiffs’ challenge to his disqualification under § 922(g)(1) based on a decades-old conviction of a common law misdemeanor.  The Schrader court determined that even assuming that common-law misdemeanants fell within the scope of the Second Amendment’s protection, the firearms ban imposed upon this class of individuals was constitutional.  The court applied intermediate, rather than strict, scrutiny since “common-law misdemeanants as a class cannot be considered law abiding and responsible.” Id. at 989.  Thus, the government was required to demonstrate that disarming common-law misdemeanants is substantially related to an important governmental objective.  Schrader held that the government met this test.  The statute’s overarching objective is prevention of armed violence, which is of obvious importance.  The firearms ban in § 922(g)(1) is reasonably designed to accomplish that objective as it keeps guns away from people suspected of more serious crimes—people who might be expected to misuse such weapons. While some common-law misdemeanants may pose no such risk, Schrader noted that “Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons.” Id. at 991 (internal citations omitted).
As-applied challenges might succeed. The Schrader court noted that Heller might dictate a different outcome had the plaintiffs raised an as-applied challenge. Schrader himself was disqualified based on a misdemeanor conviction for assault and battery that occurred forty years before he sought to purchase a gun.  The offense involved only a fistfight.  Schrader received no jail time, served honorably in Vietnam, and, except for a single traffic violation, had no arrests or convictions in the years that followed.  The court declined to consider such a challenge, however, as it had not been argued below.

When Does Revocation for DWI start?

www.kisslinglaw.com

There was much in the news a few years back about altering the conviction date of a DWI so that the defendants suspension would not affect them.  In fact, an attorney went to jail and a judge left the bench over such a scandal.  The question that remained was whether or not the defendants received any benefit from the movement of their cases and the delay of the entry of their judgments.  Below is a great article on the issue.

The Beginning Date for License Revocations Following Conviction for DWI

June 7th, 2012

By Shea Denning

Several recent stories in the News and Observer (here, here, here, and here) have chronicled the SBI’s investigation into orders entered in certain impaired driving cases by former Wake County District Court Judge Kristin Ruth, who resigned last month. Newspaper reports characterize the orders at issue as purporting to alter the conviction date for impaired driving convictions that originally were entered in district court, were appealed to superior court, and subsequently were remanded to district court for resentencing after the appeals were withdrawn.  (For more about the appeal, remand and resentencing process in DWI cases, see this post.) Ruth, who was not the judge who re-sentenced the named defendants in district court after their cases were remanded, reportedly entered orders after the new sentencing hearing was held and the new judgment imposed stating that the defendants’ convictions occurred at some earlier date. Ruth has stated that James Crouch, a defense attorney, submitted the orders to her and that she signed them without reading them.
Newspaper reports suggest that the benefit that might inure to a defendant from changing the date of his or her conviction or judgment for an impaired driving offense is a shortening of his or her post-conviction license revocation period. DMV, however, reportedly has said that none of the defendants named in the orders had their licenses reinstated early. That these post-conviction orders did not so benefit the defendants involved is not particularly surprising in light of the procedures that govern license suspension after a conviction for DWI.  I thought it might be worthwhile to spend a few minutes exploring how that process works.
Clerks of court are required to send to DMV a record of “[a] conviction of a violation of law regulating the operation of a vehicle,” which, of course, includes records of convictions for DWI. G.S. 20-24(b)(1). When DMV receives notice that a person has been convicted of DWI, it must revoke “forthwith” the person’s license. G.S. 20-17(a)(2). The revocation period for a first-time DWI offender is one year. G.S. 20-19(c1). DMV may only revoke a person’s license, however, upon final conviction of a qualifying offense. See G.S. 20-4.01(4a) (defining conviction as “a final conviction”). For a conviction to be final, not only must the person be adjudged guilty but a judgment also must be entered from which the defendant may exercise his or her right to appeal. Moreover, DWI convictions in district court from which a defendant has given notice of appeal to superior court, are not final for purposes of imposing a license revocation, just as they are not final for purposes of sentencing. Thus, while a defendant’s conviction in district court for DWI is the triggering event for a license revocation based upon that conviction, it is not always the date on which the post-conviction revocation period begins.
A defendant may render the post-conviction revocation period immediately applicable by surrendering at sentencing his or her driver’s license to the clerk of court. See G.S. 20-24(a). When this occurs, the clerk provides the defendant with form DL-53, which serves as the defendant’s receipt for the surrender of his or her license and calls for the defendant’s signature acknowledging that his or her license is suspended as of that date. The clerk then either destroys the license or forwards it to DMV. The DL-53 is transmitted to DMV and the date of receipt noted on that form is recorded as the beginning date for the post-conviction revocation in the person’s driving record.
When, however, a defendant does not surrender his or her license at sentencing, the post-conviction revocation is not immediately effective. Instead, DMV imposes the revocation after it is notified by the clerk of the conviction. After receiving notice, DMV sends the driver a letter notifying him or her that the revocation becomes effective on 12:01 a.m. on the eleventh day after the notification. This ten-day notice period is not explicitly required by statute, but corresponds to the ten-day period for filing a notice of appeal to superior court for trial de novo, thus ensuring that DMV does not impose a collateral licensure consequence for a district court conviction that is not yet final.
Thus, it is the clerk’s provision of notice to DMV or the defendant’s surrender of his or her license to the clerk at sentencing—rather than the date of conviction or sentencing—that marks the inception of the revocation period resulting from a conviction for DWI.
There is an exception to the mandatory revocation rule for circumstances in which DMV does not receive a record of a defendant’s conviction until more than a year after it is entered. G.S. 20-24(b1). In such a case, DMV may, but is not required to, substitute a period of probation for all or part of the revocation required. I’m doubtful that DMV would view this provision as applicable to a circumstance, such as the one described above, in which it received notice of a conviction, imposed a revocation, and later received amended notice stating that the conviction occurred at some earlier date.
Like the reporters who have covered this story, my guess is that the benefit sought in the cases under investigation related to license revocation.  Given the way that post-conviction revocations are imposed, however, I can’t quite figure out how the orders were designed to afford that relief.