Friday, August 29, 2014

Wake County Limited Driving Privilege for out of state DWI

If you are licensed in North Carolina and convicted of a DWI in another state, you may be able to obtain a limited driving privilege in North Carolina even though your license was revoked for the out of state DWI.  The below article was written by Shea Denning of the North Carolina School of Government.

I’ve written several posts (the latest one here) about the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving in violation of G.S. 20-138.1. A limited driving privilege is a judgment issued in the discretion of the court authorizing a person with a revoked driver’s license to drive, for limited purposes and at limited times, during the period of the revocation. As none of the earlier posts discussed the circumstances in which a person who is convicted of impaired driving in another state or in federal court may obtain a limited driving privilege from a North Carolina court, this one will.
G.S. 20-179.3(b) provides that a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction that is substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if he or she would have been eligible for it had the conviction occurred in North Carolina. You can read more here about the eligibility requirements for North Carolina DWI convictions. In general, they require that the person (1) have been punished at Level Three, Four, or Five, (2) have been validly licensed at the time of the offense, (3) not have a qualifying prior impaired driving conviction, (4) not have a subsequent conviction or unresolved charge for impaired driving, and (5) have a substance abuse assessment and furnish proof of financial responsibility. Even if a person’s out of state conviction satisfies the “substantially similar” criteria and the person meets the enumerated eligibility requirements, the person still must demonstrate that his or her North Carolina driver’s license was revoked, a requirement that significantly reduces the universe of eligible persons.
A few examples might help demonstrate the impact of this limitation.
Howard Henderson:  An NC resident with an out-of-state DWI conviction
Suppose that Howard Henderson, a North Carolina resident with a North Carolina driver’s license, drives while impaired while vacationing in Pennsylvania. Henderson subsequently is convicted in Pennsylvania of driving while impaired. Pennsylvania, one of the 46 states that is a member of the Drivers License Compact, reports the conviction to the North Carolina Division of Motor Vehicles (NC DMV). See 75 Pa. Cons. Stat. Ann. § 1581 (West) (requiring the “licensing authority of a party state [to] report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee”); cf. G.S. 20-4.24(a) (requiring that member states report a conviction for “[d]riving a motor vehicle while impaired”).
After receiving the report, NC DMV revokes Henderson’s driver’s license pursuant to G.S. 20-4.24(b), which requires that North Carolina give the same effect to a report of a conviction in a member state of driving a motor vehicle while impaired that it would give to a North Carolina conviction of impaired driving, and G.S. 20-17(a)(2), which requires NC DMV to revoke the license of any driver upon receiving a record for his conviction of impaired driving under G.S. 20-138.1. Cf. Hoenisch v. Com., Dept. of Transp., Bureau of Driver Licensing, 785 A.2d 969, 973 (Pa. 2001) (concluding that a conviction under G.S. 20-138.1 provides a sufficient basis for a reciprocal driver’s license suspension in Pennsylvania).
Given that Henderson’s North Carolina driver’s license was revoked, he is eligible for a limited driving privilege under G.S. 20-179.3 if meets the other eligibility requirements noted above. Henderson must file his application for a privilege with the clerk in duplicate, and a hearing on his application may be held a reasonable time after the clerk files a copy of the application with the district attorney’s office. G.S. 20-179.3(d).
The North Carolina Administrative Office of the Courts (AOC) has created a form petition for seeking such a limited privilege, AOC-CV-350, as well as a form privilege, AOC-CV-352. Because there is no existing North Carolina criminal case for such petitions to accompany, the AOC has directed clerks to establish these sorts of limited driving petitions as civil cases and to collect the appropriate civil filing fees. (I am hoping that our fearless blog leader, Professor Welty, has stopped reading by now. Otherwise he may kick this entire piece off the criminal law blog.)
Since Henderson was convicted of impaired driving in a jurisdiction other than North Carolina, the hearing must be scheduled before the chief district court judge of the district court district in which Henderson resides. G.S. 20-179.3(d). If the Pennsylvania court imposed a term of nonoperation of a motor vehicle, then Henderson may apply for the limited driving privilege only after having completed at least sixty days of that term. G.S. 20-179.3(c).
Howard Henderson 2.0:  An NC resident with an out-of-state DWI conviction in his former home state
Suppose, however, that Henderson was a Pennsylvania resident licensed in Pennsylvania at the time he drove while impaired. Assume further that Henderson’s alcohol concentration at the time he drove while impaired was 0.10, which resulted in a one-year revocation of his Pennsylvania driver’s license. See 75 Pa. Cons. Stat. Ann. § 3804(e) (West). Pennsylvania will not report Henderson’s conviction to any other state, since Henderson is a Pennsylvania resident with a Pennsylvania driver’s license. Suppose Henderson moves to North Carolina two months after his Pennsylvania conviction for impaired driving. Henderson is ineligible to obtain a North Carolina driver’s license because of the Pennsylvania revocation. See G.S. 20-4.25 (prohibiting member state from issuing a license if the applicant has held a license in another member state that has been revoked and the revocation period has not ended). And Henderson will not be eligible for a limited driving privilege under G.S. 20-179.3 because, even though he has no North Carolina driver’s license and no reciprocal privilege to drive in North Carolina, his North Carolina driving privileges have not been revoked. Cf. 20-22 (permitting NC DMV to revoke the driving privileges of nonresidents “in like manner and for like cause as a driver’s license” issued by NC DMV); G.S. 20-23.1 (permitting NC DMV to revoke the operating privileges of a person who does not have a driver’s license “in like manner as it could suspend or revoke his license if such person held a driver’s license”).
Charlene Connor:  An NC resident with a federal DWI conviction
Consider next the circumstances of Charlene Connor, a North Carolina resident with a North Carolina driver’s license who is convicted in federal court of driving while impaired on the military base at Fort Bragg. See 18 U.S.C. § 13 (assimilating state law crimes for areas within federal jurisdiction). Upon receiving notice of Connor’s conviction, NC DMV is authorized to revoke Connor’s license. See G.S. 20-23.2. As a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction, Connor is eligible, upon satisfying other requirements, to obtain a limited driving privilege under G.S. 20-179.3. Her application, like Henderson’s in the first example above, must be filed with the chief district court judge in the district in which she resides.
Charlene Connor:  An out-of-state resident with a federal DWI conviction
Next suppose that Ms. Connor is an active-duty soldier stationed at Fort Bragg, who is licensed to drive by her home state of Texas. In this example, Connor is ineligible to obtain a limited driving privilege under G.S. 20-179.3 following her conviction of impaired driving in federal court because her North Carolina driving privileges have not been revoked. Perhaps Connor could spur NC DMV to act to revoke her driving privileges as a nonresident under G.S. 20-22 and thereby render herself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution.
Practitioners:  Have your say
Practitioners, is the eligibility gap that I have identified above significant in practice? Have you attempted to gain driving privileges for Henderson and Connor 2.0 in the examples above?  If so, please use the comment feature to share your on-the-ground perspective.

Sunday, August 17, 2014

New DWI sentencing law

The legislature has amended the DWI sentencing law which now states you will spend you time in a local jail if you are sentenced to serve active time for a DWI regardless of the length of your sentence.

Below is a great review of the new law by the NC SOG.
The General Assembly just made it a whole lot easier to determine whether a defendant imprisoned for a misdemeanor DWI conviction will serve his or her sentence in jail or prison.  Defendants sentenced to imprisonment for misdemeanor impaired driving on or after January 1, 2015 will spend that time in a local confinement facility—a jail—rather than in prison, regardless of the length of the sentence.
Good riddance? We are policy-neutral here at the School of Government, but I’ll own my aversion to laws that I can’t explain.  And, honestly, I cringe every time I have to explain the current rule.  The starting point is G.S. 20-176(c1) (repealed by S.L. 2014-100 (S 744)), which provides:
Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20-28(a) and (b), G.S. 20-141(j), G.S. 20-141.3(b) and (c), G.S. 20-141.4, or a second or subsequent conviction of G.S. 20-138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A-217(5), for a violation of this Chapter.
Thus, the rule generally applicable to sentences for all Chapter 20 offenses (including DWI) is that terms of imprisonment for active sentences, regardless of length, are served in local confinement facilities rather than in the custody of the Division of Adult Correction (DAC). This rule does not apply to a defendant who previously has been imprisoned in a local confinement facility for a Chapter 20 offense. The general rule also does not apply to convictions for certain offenses, among them a second or subsequent conviction of driving while impaired in violation of G.S. 20-138.1.
Have your eyes glazed over yet? Unfortunately, there’s more.
When an exception to the general rule of local confinement in G.S. 20-176(c1) applies, G.S. 15A-1352, which governs the appropriate place of confinement for criminal offenses generally, establishes the framework for where a term of imprisonment may or must be served. Applying that framework to impaired driving sentences became less straightforward after the legislature created a Statewide Misdemeanant Confinement Program for misdemeanor sentences of more than 90 and up to 180 days, but excluded impaired driving sentences from its purview.  The bottom line appears to be that a person sentenced to imprisonment for a second or subsequent DWI has to serve that time in a local jail if the sentence is 90 days or less.  Judges have discretion regarding the place of confinement for sentences of more than 90 and up to 180 days.  And sentences of 181 days or more must be served in a DAC facility.
Yet another set of rules applies to imprisonment served as a condition of special probation. Pursuant to G.S. 15A-1351(a), noncontinuous periods of special probation for DWI as well as other criminal offenses may be served only in local confinement or treatment facilities.  But if the special probation is ordered for a continuous period (say, 30 days), the judge has discretion over whether to order the defendant confined to jail or prison.
The new regime.  New rules apply to misdemeanor impaired driving sentences imposed on or after January 1, 2015.  New G.S. 15A-1352(f) provides that a person sentenced to imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation, must be committed to the Statewide Misdemeanant Confinement Program (SMCP). Under this program—established in 2011 pursuant to G.S. 148-32.1—the North Carolina Sheriffs’ Association identifies space in local confinement facilities that is available for housing misdemeanants.  The program initially did not apply to sentences for misdemeanor impaired driving or to other misdemeanants serving sentences of more than 180 days.  Sec. 16C.1.(a) of S.L. 2014-100 amends G.S. 15A-1352(a) to require that a person sentenced to imprisonment for a misdemeanor or for nonpayment of a fine for conviction of a misdemeanor must be committed to the SMCP if the sentence is for 91 days or more. Sentences of 90 days or less for such misdemeanor convictions (other than DWI) must be served in a local confinement facility.  The changes applicable to misdemeanor sentences other than DWI apply to persons sentenced to imprisonment on or after October 1, 2014.
The bottom line for active terms of imprisonment for misdemeanor DWI under the new rule is that, no matter their length, they will be served through the SMCP.  That means that defendants will be housed in a local jail, thought it may not be the jail in the county of conviction.
What about special probation?  Under a sentence of special probation, a court may suspend the term of imprisonment and place the defendant on probation, requiring that the defendant submit to a period of imprisonment.  For misdemeanor impaired driving sentences imposed on or after January 1, 2015, all imprisonment imposed as a condition of special probation must be served in a designated local confinement or treatment facility—regardless of whether the imprisonment is for continuous or non-continuous periods.  The same rule applies to special probation for misdemeanors generally for sentences imposed on or after October 1, 2014.
Thus, all special probation (or split sentences) for misdemeanors–DWI and otherwise—will be served in a local confinement facility rather than a DAC facility under amended G.S. 15A-1351(a).
While the jury is out on whether changes to the place of confinement rules will save money, allow for a more efficient allocation of resources, or provide DWI inmates with the treatment and services they need, the amendments undoubtedly make the law easier to explain.

Monday, August 11, 2014

Window tinting

A window tint charge will usually be dismissed with proof of compliance including an inspection report.  below is a great explanation of the law by the NC school of governement.

By Shea Denning
Driving a vehicle on a street, highway, or public vehicular area in North Carolina in violation of the window tinting restrictions set forth in G.S. 20-127 is a Class 3 misdemeanor. In 2013, there were more than 12,500 charges filed for such window tinting violations. For some drivers, the violation leads to far more serious criminal charges. A police officer who has reasonable suspicion to believe that a vehicle’s windows are tinted in violation of state law may stop the vehicle to investigate. Appellate court opinions chronicle circumstances in which evidence of more serious criminal activity is uncovered during the course of such a traffic stop. See, e.g., State v. Williams, 366 N.C. 110, 110-11 (2012) (vehicle stopped for window-tinting violation; defendant-passenger subsequently arrested after sixty-five pounds of marijuana were found in the vehicle); State v. Davis, __ N.C. App. ___, 721 S.E.2d 408 (2012) (unpublished op.) (defendant’s vehicle stopped for illegal tinting on windows; defendant arrested after marijuana and cocaine found in vehicle).
So what are the window tinting requirements? They are different for windshields and windows.
Windshields. Generally, the windshield of a vehicle may be tinted only along the top of the windshield and the tinting may not extend more than five inches below the top of the windshield or below the AS1 line of the windshield, whichever measurement is longer. G.S. 20-127(b). An untinted clear film that does not obstruct vision but reduces or eliminates ultraviolet radiation may be applied to windshield.
Windows. Any window of a vehicle other than the windshield may be tinted as follows:
  • The total light transmission of the tinted window must be at least 35 percent. A vehicle window that, by the use of a DMV-approved light meter, measures a total light transmission of more than 32 percent is conclusively presumed to meet this restriction.
  • The light reflectance of the tinted window must be 20 percent or less.
  • The material used to tint the window must be nonreflective and may not be red, yellow, or amber.
Exceptions. The window and windshield of commercial motor vehicles must comply with federal regulations governing tinting.
Moreover, the window tinting requirements do not apply to the following vehicle windows:
  • A window of an excursion passenger vehicle, as defined in G.S. 20-4.01(27)a.
  • A window of a motor home, as defined in G.S. 20-4.01(27)d2.
  • A window of an ambulance, as defined in G.S. 20-4.01(27)f.
  • The rear window of a property-hauling vehicle, as defined in G.S. 20-4.01(31).
  • A window of a limousine.
  • A window of a law enforcement vehicle.
  • A window of a multipurpose vehicle that is behind the driver of the vehicle. A multipurpose vehicle is a passenger vehicle that is designed to carry 10 or fewer passengers and either is constructed on a truck chassis or has special features designed for occasional off-road operation. A minivan and a pickup truck are multipurpose vehicles.
  • A window of a vehicle that is registered in another state and meets the requirements of the state in which it is registered. (There is no corresponding exception for the windshields of vehicles registered in another state. See State v. Schiffer, 132 N.C. App. 22, 28 (1999).)
  • A window of a vehicle for which the Division has issued a medical exception permit under subsection (f) of this section.
Factory finish. Even though window tinting laws vary greatly from state to state, owners of vehicles with factory tint don’t have to worry about whether state law requirements are satisfied. That’s because, as explained in this New York Times article, vehicle manufacturers must comply with federal regulations that are as strict as the strictest state.
After-market tinting. But folks who purchase vehicles with after-market tinting can’t be so assured. While it is a Class 3 misdemeanor to apply tinting to the window of a vehicle that is subject to a safety inspection in North Carolina if the tint does not comply with the restrictions of G.S. 20-127, a person easily could purchase a car with after-market tint that has been lawfully applied in another state but that does not meet North Carolina requirements. The owner may first learn of the noncompliance through a vehicle inspection, as North Carolina inspection stations are required to test vehicle windows with after-market tinting with an approved light meter. See 19A N.C. Admin. Code 3D.0551.  Those inspections are $10 more expensive than is routine. G.S. 20-183.7(a).

Monday, August 4, 2014

Should you hire an attorney for a traffic ticket

This is the $100,000 or $1000 question.  In most cases the answer is yes.  Even if you could handle it by yourself, every day I see individuals handle their cases wrong which will end up in their insurance rates increasing.  By the way, may police officers and insurance agents give bad advise as to what you should do.  In addition, even if you do handle your case correctly, the clerk may not do their part correctly and cause a problem with your drivers license or insurance coverage or rates.  While fixing this kind of problem is easy for an attorney, it would be a nightmare for a non attorney.

Here is a very good article on why you should hire an attorney:

Do you really always need a lawyer for a traffic ticket?  From a practical perspective, the definitive answer is probably.  It is shocking how many completely misunderstood issues surrounding how speeding and stop sign cases there are.  To start with, every county has its own rules. In fact, different prosecutors each adhere to their own personal guidelines.  Short of going to court every day and observing each prosecutor, the defense attorneys, and the judges there is likely no way to build up enough institutional knowledge to know whether you are handling your case in the best possible way.

PJCs (a prayer for judgment continued) can be great, but, used improperly, they can be quite harmful.  Even when their use isn't harmful, sometimes they are not required.  Since you only get one prayer for judgment every three years per insurance policy and two every five years for DMV purposes, you want to be very careful not to waste them.  A good traffic lawyer knows when to use them and when not to use them.  For example, in cases where a client has a commercial driver’s license, or CDL, a PJC on a speeding case does absolutely nothing to benefit the client.  Our lawyers are extremely stingy with our clients PJCs. 

Once one case is handled incorrectly, driver's license problems tend to snowball.  It can be complicated for even the best traffic lawyer to fix traffic violations at that point.  It can also be very expensive.
Having a good traffic lawyer from the beginning will likely save you time and money.  It will also likely prevent anything unexpected from happening to your driving privileges.  For example, lots of police officers will tell the people that they have ticketed that they can simply pay off their ticket through the mail.  Some people follow that advice.  Well, if that ticket was for 15 mph or more over the speed limit, the hapless soul who mailed in that ticket will be quite surprised when they find out the DMV will revoke their driver’s license for 60 days.

This all being said, you should at a minimum consult an attorney before you do anything.  You can the make an informed decision on whether or not to hire an attorney.     Most good attorneys will let you know if you do not need an attorney and you can handle it yourself.  In addition, you should always consider the cost of taking time off work to go to court and wait around all day at the courthouse.