Monday, December 29, 2014

Hit and Run

Today in MD, an Episcopal Bishop was involved in a Hit and Run when she fatally hit a bike rider and fled the scene.  She came back 20 minutes latter so she claims it was not a hit and run.  This prompted me to write on the NC law on Hit and Run.  Here is a great review of the law by Shea Denning at the NC School of Government.

Hit and run is a term used to describe several felony and misdemeanor offenses set forth in G.S. 20-166, a statute in which neither the term “hit” nor “run” appears. G.S. 20-166 criminalizes a driver’s failure to stop at the scene of a crash in which the vehicle he or she is driving is involved, a driver’s failure to remain at the scene of such a crash, and a driver’s facilitating of the premature removal of his or her vehicle from the scene. The last type of violation was created in 2005 in response to the death of twenty-seven-year-old Stephen Gates.
In the early morning hours of October 4, 2003, Gates, a reporter for the Tar Heel Sports Network, was changing a tire on his car on the side of Interstate 40 near Hillsborough, NC, when he was struck by Cadillac Escalade driven by Emily Caveness. See Benjamin Niolet, Jury Rejects Hit and Run, The News & Observer, Nov. 13, 2004 (as modified October 22, 2005) (The facts set forth in this post relating to the accident in which Jones was killed and the ensuing criminal prosecutions are drawn from Niolet’s article.). The door to Gates’ car was ripped off by the impact, and Gates was killed. Caveness stopped her vehicle some distance from the crash. Rabah Samera, who had been asleep in the front passenger seat until the crash, got out of the car and saw that the front of the Escalade was mangled. Samera got into the driver’s seat and drove the Escalade to Raleigh, accompanied by Caveness and two other passengers who had been riding in the backseat of the car. Samera stopped at a well-lit gas station in Raleigh and saw, for the first time, blood on the car.
Caveness pled guilty to the misdemeanor offense of failing to report an accident pursuant to G.S. 20-166.1. (A post about that offense is available here.) She testified against Samera, who was tried for felony hit and run pursuant to G.S. 20-166. Since G.S. 20-166 requires the driver of a car involved in a crash in which a person is injured to stop and remain at the scene, and Samera was not driving at the time of the crash, the State apparently proceeded to trial on the theory that Samera aided and abetted Caveness in committing the offense. Samera was acquitted.
The year after Samera’s acquittal, the General Assembly enacted S.L. 2005-460: “An Act to Make It Unlawful to Drive Away From or Otherwise Leave the Scene of a Motor Vehicle Accident in Certain Circumstances.” The Act amended G.S. 20-166 to require that the driver of a vehicle involved in an accident or collision remain “with the vehicle” at the crash scene and to prohibit a driver from “facilitat[ing], allow[ing], or agree[ing] to the removal of the vehicle from the scene.”
S.L. 2005-460 further enacted new G.S. 20-166.2, prohibiting the passenger of a vehicle involved in a crash from “willfully leav[ing] the scene of the accident by acting as the driver of a vehicle involved in the accident” and from “facilitat[ing], allow[ing], or agree[ing] to the removal of the vehicle from the scene.” G.S. 20-166.2, like G.S. 20-166, sets forth felony and misdemeanor offenses. A willful violation of G.S. 20-166.2(a) “is a Class H felony if the accident or collision is described in G.S. 20-166(a).” This cross reference raises a couple of interesting issues. First, G.S. 20-166 delineates felony and misdemeanor offenses depending upon whether a person was injured in the crash and whether the driver knew or had reason to know of that injury. Thus, the passenger’s level of culpability depends upon the driver’s knowledge, which is an unusual formulation. Furthermore, G.S. 20-166 was amended in 2008 to set forth in subsection (a) a Class F felony for a driver’s failure to stop or leaving the scene of a crash resulting in serious bodily injury or death. New G.S. 20-166(a1) sets forth a Class H felony for hit and run in crashes resulting in lesser injuries. No corresponding amendments were made in 2008 to G.S. 20-166.2, which continues to refer solely to subsection (a).
There are no appellate court decisions applying G.S. 20-166.2. Readers, if you have prosecuted or defended charges under this statute or have thoughts about whether its presence has altered the crash-scene conduct of drivers and passengers, we’d love to hear what you have to say.

Monday, December 22, 2014

Speeding Reduced to Improper Equipment

We have a new District Attorney starting in Wake County on January 1, 2015.  It is the District Attorney who sets the policy in each district with regard to the reduction of speeding tickets.  Up to this point in time, you have not been able to get a speeding ticket in Wake County reduced to Improper Equipment.  However, the word in the courthouse is that this is about to change.  It has not yet been stated what speeds and cases with received this reduction or whether or not your driving record with be a factor.  I will update this blog once these terms have been set my the new DA.  What we do know is that speeding tickets will become more expensive since there is an additional $50 Improper Equipment fee added to the court costs.  In addition, I anticipate the judges will add the statutory $25 fine for Improper Equipment.

Since we are now looking at improper equipments in Wake County, now is a good time to review an article written by Shea Denning of the NC School of Government in this issue.

In 2007, legislative action designed to stiffen penalties for drivers charged with speeding followed close on the heels of the “Speed Unlimited” series published in the News and Observer in May 2007. Among the News and Observer’s findings was that, in 2006, only 19 percent of drivers ticketed for speeding at 100 mph or more were convicted as charged. For the year ending June 30, 2006, the newspaper reported that four of five speeding drivers had charges dismissed or reduced or were given a prayer for judgment continued.
S.L. 2007-380 (S 925) addressed two of the more prominent issues raised in the newspaper’s report: pleas to improper equipment (an infraction) and the entry of prayers for judgment continued. For offenses committed on or after December 1, 2007, the act removed a violation of G.S. 20-123.2, the statute requiring that motor vehicles be equipped with a working speedometer, as a lesser included offense of charges of speeding in excess of 25 mph over the posted speed limit. It also enacted new G.S. 20-141(p), which barred the disposition of prayer for judgment continued for a driver charged with speeding more than 25 mph over the posted speed limit. The entry of a prayer for judgment continued (if the driver does not have other prayers for judgment continued within a certain time period) prevents a driver from suffering adverse collateral consequences for license and insurance purposes resulting from a speeding conviction or adjudication. Because, however, G.S. 20-141(p) refers to the offense with which a defendant is “charged” without further specification as to the stage of the proceedings at which the charges are to be determined, questions have arisen regarding just which charge counts for purposes of limiting a judge’s authority to enter a prayer for judgment continued. “Charged might mean the original offense charged, or it might instead refer to the offense upon which a defendant is tried or to which the defendant enters a plea of guilty or responsible.
The News and Observer followed up its 2007 series with a March 28, 2009, story, available here, in which it reported its analysis of more recent dispositions in speeding cases.  The article concluded that despite the 2007 legislation, courts were “still soft” on speeders. The article alleged that “[n]early 12 percent of those charged with driving more than 25 mph over the speed limit got breaks that legislators tried to outlaw,” and referenced pleas to improper equipment and the entry of prayers for judgment continued. The article also reported that in most districts, there had been a “surge” in cases in which the charges were reduced to “10 mph or less over the limit.”
As a result of the report and varying practice among judges and districts, questions have arisen regarding whether a judge may properly enter a prayer for judgment continued when a defendant is originally charged with speeding more than 25 mph over the speed limit but pleads to speeding 25 mph or less over the speed limit.
My view is that the charge properly considered by the judge is the charge to which the person pleads guilty or responsible or upon which the defendant is tried. If that charge differs from an earlier charge, then the earlier charge does not bind the judge’s sentencing discretion. Interpreting “charged” in G.S. 20-141(p) to refer to the charge at the time the case is heard in court comports with manner in which cases are prosecuted under state law. Pursuant to G.S. 7A-61, the district attorney is the official responsible for preparing the trial dockets and prosecuting all criminal actions requiring prosecution in the superior and district courts in his or her district. The prosecutor is authorized by G.S. 15A-922 to supersede a citation and all previous pleadings in a misdemeanor case by filing a statement of charges at any time before arraignment in district court. Thus, the prosecutor has the ultimate say regarding the charges upon which the defendant is tried. The prosecutor’s amendment of the charges stated on the citation by striking through the original speed and replacing it with a different speed is procedurally akin to the filing of a statement of charges, which “may charge the same offenses as the citation, criminal summons, warrant for arrest, or magistrate’s order or additional or different offenses.” In light of the district attorney’s prosecutorial authority, and his or her ability to supersede a citation as the state’s pleading in a misdemeanor case by filing a statement of charges, see G.S. 15A-922, it seems incongruous to construe “charged” in G.S. 20-141(p) as referring to a charge that has been amended by the official responsible for prosecuting the case.
Thus, if a defendant is originally charged with driving 81 mph in a 55 mph speed zone, the district attorney reduces the charge to 70 mph in a 55 mph speed zone, and the defendant pleads guilty to the latter — and lesser — charge, the judge may lawfully enter a prayer for judgment continued.

Tuesday, December 16, 2014

Can I be charged with Driving While License revoked if I never had a license.

Great article on Driving while license revoked.  This was written by another attorney but I am posting it due to its relevance
Perhaps one of the most misunderstood and misinterpreted laws is North Carolina General Statute 20-28, the offense of Driving While License Revoked.  Countless people have asked how it is possible for them to be charged with Driving While License Revoked, when they have never had a license.  Other people have come  with suspension letters from the Department of Motor Vehicles after they represented themselves and paid considerable amounts of money, with the hope that they would be able to obtain their license.  Most people mistakenly think that their issue is simple enough that can handle it without an attorney, but the offense of Driving While License Revoked is not as clear as it appears to be.  While it is a traffic ticket, it’s also a misdemeanor charge with serious penalties.  Upon first glance it appears to be a harmless ticket, but if it’s handled in the wrong manner, the consequences can be devastating.
Causes of suspension or revocation
First of all, it is important to understand what causes a person’s license to be revoked or suspended, and there are certainly several reasons that may contribute to the revocation.  Many times, it begins with something as simple as failing to appear in court for some minor traffic offense or failing to pay the fine, court costs, or applicable fees that were ordered to resolve a traffic offense where the person actually did appear in court and resolved the case.  In those instances, a person is indefinitely suspended which means that there is no definite period of revocation, and the license can be restored upon complying with the failure to appear or the failure to pay the ordered costs.   Other times, a revocation may result from a prior impaired driving conviction where there was a failure to comply with the terms and conditions of that conviction which requires among other things, a substance abuse assessment and the completion of any recommendations by that assessing agency.  Finally, being convicted of a “moving” violation during a period of suspension will also result in an additional period of revocation, and moving violations are not just convictions for speeding tickets.  Moving violations also include convictions for driving a vehicle without liability insurance.  The problem, however, is that many people don’t comply due to financial hardship, neglect or plain inattention, and they continue driving.  Inevitably, they are pulled over for some other traffic offense or they go through a license check, and then they are charged with the offense of Driving While License Revoked.  For some people, that initial charge of Driving While License Revoked is enough to encourage them to call an attorney for assistance to resolve these issues, while other people continue driving and accumulate more and more charges.
 Penalties and Consequences
So just how serious is the offense of Driving While License Revoked?  In North Carolina, the offense of Driving While License Revoked is a misdemeanor offense.  Under North Carolina law, the most serious misdemeanors are class A1 misdemeanors, and some of the most common A1 misdemeanors are Driving While Impaired, Assault on a Female, and Misdemeanor Child Abuse.  While a conviction for Driving While Impaired carries a maximum sentence of three years, the remaining A1 misdemeanors carry a maximum sentence of 150 days.  The next most serious misdemeanors are class 1 misdemeanors which carry a maximum sentence of 120 days, followed by class 2 misdemeanors (60 days) and class 3 misdemeanors (20 days).  The most common class 1 misdemeanors are Misdemeanor Larceny, Possession of Drug Paraphernalia, and Driving While License Revoked.  Some of the more serious class 2 misdemeanors are Simple Assault and Carrying a Concealed Weapon, while some of the most common class 3 misdemeanors are Shoplifting, Discharging a Firearm in City Limits, and Possession up Marijuna up to 1/2 ounce.  So why do I mention all of these other classes of misdemeanors and offenses?  I mentioned them to demonstrate that it is possible to receive a stiffer jail sentence for driving on a revoked license than it is to be convicted of assaulting someone, carrying a concealed handgun, or even possessing a small amount of marijuana.  Does that mean that every person who is charged with Driving While Revoked receives a jail sentence of 120 days?  No.  In fact, in the years that I’ve been practicing law I have only personally experienced one individual who received the maximum sentence of 120 days for the offense of Driving While License Revoked, and he represented himself instead of hiring an attorney.  I was later hired to appeal his case, and he was able to receive a probationary sentence.
In addition to the possibility of receiving an active sentence, the first conviction for Driving While Revoked will result in a suspension of one year for the first offense.  That definite suspension means that the DMV will not issue a license until after that one-year period has passed.  An additional two years will be added to that suspension for a second conviction, and a third conviction will result in a permanent revocation.  While a permanent suspension does not actually mean you will never be able to obtain a license, you will have to wait three years to apply for a license, and there is no guarantee that your license will be reinstated at that time.  I agree that we should all have a valid license before we operate a motor vehicle, but I also understand the necessity for people to be able to drive to take care of their families and to handle the countless responsibilities that our lives require us to fulfill.   A conviction of Driving While License Revoked includes serious consequences that sometimes result in unduly burdensome results.  As an attorney, I cannot change the law as it currently stands, but I can help you navigate your way through it, so that your rights are properly protected.  In fact, you may be closer to having your license reinstated that you realize.  Therefore, if you are charged with Driving While License Revoked, give us a call before you simply plead guilty or try to handle these cases by yourself.  Your ability to drive is just too important.

Monday, December 8, 2014

Texting While Driving in North Carolina

There is much talk about driving while texting.  The North Carolina law has many loop holes and is hard to prove.  Below is an article from WRAL about the issue.

— More than 3,000 people die and more than a quarter-million are injured in the U.S. each year in crashes involving texting while driving, according to the Harvard Center for Risk Analysis. Despite the danger, many people still text behind the wheel, but punishing them isn’t always easy.
A recent study by Forbes Business found that 47 percent of adults admit they text while driving and that 58 percent of high school seniors text friends instead of paying attention to the road. Despite those numbers, few people are ever charged.
North Carolina is one of 40 states that have laws against texting while driving. In North Carolina, it is a primary offense, meaning drivers can get pulled over if an officer sees them texting on the road. But getting charged is one thing. Getting convicted isn't so simple.
Last year, 1,458 people were cited with texting while driving in Wake County – about 300 more than the previous year. In 2011, fewer than 900 drivers were cited. Interim Wake County District Attorney Ned Mangum and other prosecutors say they hope those numbers will act as a deterrent.
“The more people that are aware that texting while driving is dangerous is better for the public, and the less people that do it, the safer the roads will be,” Mangum said.
Law enforcement officers hope to send the same message with more crackdowns on distracted drivers. During a recent campaign in Cary, 80 drivers were pulled over, but not everyone received a ticket.
WRAL Investigates found many drivers who were cited didn’t end up paying the price.
Christopher Lynn was cited for texting while driving, but his case was thrown out. He says he was looking at a map on his phone, not texting.
“Ultimately, the law is rather toothless,” Lynn said. “What I did was trace along the road I thought I was on (on the phone) … When I looked up, there was some lights behind me, and (the officer) said I was texting while driving.”
Of the 1,367 cases that were disposed of last year in Wake County, almost half of the drivers paid the $290 in fines and court costs. In many of the remaining cases, drivers fought and won.
“In all honesty, I could have accepted the charge, but why accept something that I didn’t do?” Lynn asked.
There's plenty of gray area in the law.
“The way the statute is written, it’s very difficult to prove beyond a reasonable doubt in court,” White said. “In order to show you were using your phone to text or emailing, they would have to have a search warrant.”
If an officer asks to see the phone, the driver does not have to hand it over.
“You can decline,” White said.
In North Carolina, the texting law applies only to moving vehicles. Drivers who are legally stopped at a red light can text and email. Drivers who are in a moving vehicle cannot text or email, but they are allowed to type into their phone's GPS and search for contacts.
That distinction makes it tough on prosecutors.
“It’s hard for a police officer to tell if you’re inputting numbers or are you text messaging someone when you’re looking at your phone,” Mangum said.
The law is different for children under 18 and school bus drivers. They are not allowed to use cellphones at all unless it is an emergency.
Mangum says many drivers admit to texting when they get pulled over. If drivers fight the citation, it puts the state in a tough position.
“Obviously, as the Supreme Court just told us, we’re not going to get a search warrant every time someone’s been stopped using a mobile phone. That’s not a good use of the state’s limited resources,” he said.
While the number of texting cases will likely continue to increase in traffic court, proving it will continue to be a challenge.
“The problem with it was it was circumstantial, and unless you show an officer, ‘Hey, they is all my text messages within the last hour,’ it’s pretty hard to enforce,” Lynn said.
While texting does carry a fine and court costs, much like the seat belt law, drivers won't get points on their license. A bill that would have doubled the texting fine to $200 never made it out of committee this legislative session.

NC's texting while driving law

§ 20-137.4A. Unlawful use of mobile telephone for text messaging or electronic mail.
(a) Offense. - It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:
(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or
(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.
(a1) Motor Carrier Offense. - It shall be unlawful for any person to operate a commercial motor vehicle subject to Part 390 or 392 of Title 49 of the Code of Federal Regulations on a public street or highway or public vehicular area while using a mobile telephone or other electronic device in violation of those Parts. Nothing in this subsection shall be construed to prohibit the use of hands-free technology.
(b) Exceptions. - The provisions of this section shall not apply to:
(1) The operator of a vehicle that is lawfully parked or stopped.
(2) Any of the following while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of a public or private ambulance.
(3) The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system.
(4) The use of voice operated technology.
(c) Penalty. - A violation of this section while operating a school bus, as defined in G.S. 20-137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.
No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section. Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in any action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle. (2009-135, s. 2; 2012-78, s. 9.)