Increasing Court Costs

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Great article on the impact of increasing court costs on the public's ability to pay and keep their licenses.

By Tamar R. Birckhead

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From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.
But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.
Across the United States, including here in North Carolina, people convicted of even minor criminal charges, such as loitering, littering and unpaid traffic tickets, face an array of fees, court costs and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment – and ultimately incarceration.
These modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.
In North Carolina, these court fees have been steadily rising – far outpacing the rate of inflation – over the past two decades. All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court. If these fees continue to increase at the same rate, they will exceed $500 by the year 2025. Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee and a $25 criminal record check fee.
People of color and those with low incomes are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.
In 1970, the U.S. Supreme Court concluded that extending a prison term for an inability to pay criminal-justice debt violated the 14th Amendment’s Equal Protection Clause. Yet jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful. Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
The proliferation of court fees and the costs incurred by the state to collect them has prompted some judges, politicians and lawmakers across the U.S. to question whether the practice has gone too far.
For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions. Other states have implemented similar programs.
In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the General Assembly has mandated that many fees, such as the application fee for a public defender, not be waivable.
North Carolina’s courts and lawmakers must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.

Read more here: http://www.newsobserver.com/opinion/op-ed/article51496595.html#storylink=cpy

Field Sobriety Test

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

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

Grapes over Safety

Turns out that the push to site truckers for napping on the side of the road is more about helping a donor.

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November 14, 2015

McCrory donor sparked Highway Patrol campaign against napping truckers

Ticket-writing was focused in Surry County, home of donor Charlie Shelton’s vineyard
Shelton brothers, family and company executives donated $32,000 to McCrory’s last campaign
One trucker was awakened by troopers twice in the same night

The entrance ramp to southbound I-77 Exit 93, Zephyr Road in Dobson is loaded with signs warning of a "No Parking" along the ramp. Surry County in northwestern North Carolina is where NC Highway Patrol troopers write the most tickets for roadside napping to interstate truckers. Chuck Liddy cliddy@newsobserver.com

By Bruce Siceloff

DOBSON

In the wee hours of a June morning, truck driver Robin Metdepenningen picked the wrong place to park for a nap.
He was feeling sleepy as he drove north through Surry County. So he pulled off Interstate 77 at Exit 93 and rolled up the ramp and across Zephyr Road. He parked behind two other tractor-trailers in the gravel beside the on-ramp, doused the lights and closed his eyes. It was 4:45 a.m.
“Next thing I know, the officer bangs on the door,” said Metdepenningen, 62, of Concord. “He woke me out of a dead sleep.”
Along with three more truckers dozing nearby that morning – a fourth tractor-trailer had pulled in while he slumbered – Metdepenningen was startled to find himself the target of an unusual state campaign to punish violators of an obscure no-parking law.
The new enforcement effort was sparked by complaints to Gov. Pat McCrory from a longtime political supporter: Charlie Shelton, a business executive, Republican fundraiser and former state Board of Transportation member who lives in Surry County.
On June 3 in Raleigh, the Highway Patrol announced a statewide effort to reduce crashes that involve vehicles illegally parked along interstate highways. But the Highway Patrol had quietly launched its no-parking push three months earlier, focusing at first on I-77 in Surry and Yadkin counties.
In June, a spokesman attributed the initiative to Col. William Grey, the patrol commander, who had “traveled the state and noticed a lot of this” illegal parking. But a Highway Patrol memo in March told local troopers that the I-77 no-parking effort was in response to complaints that were “funneled through the Governor’s Office.”
Charlie Shelton uses Exit 93 when he travels to and from his Surry County home here in northwestern North Carolina. So do 80,000 people who come here each year to visit Shelton Vineyards, an award-winning winery he owns with his brother, Ed.
The Sheltons backed McCrory two decades ago in Charlotte, where they were developers and he was the mayor. And recent campaign finance records show that, during the year before he was elected governor in 2012, McCrory received at least $32,000 in political donations from the Shelton brothers, family members and Shelton company executives.
Shelton says he met with McCrory in February or early March to express concern about truckers who park along the ramps up and down I-77.
“It’s unsightly,” Shelton, 80, said in an interview. “It’s against the law to park a tractor-trailer and go to sleep there and throw your trash out on the road. ...
“I asked to talk with him about it, and I spent a little time explaining it to him. And that’s when he got the troopers involved and the DOT involved.”
McCrory’s office did not respond to email and telephone requests for comment.
The parking enforcement campaign is the second instance to become public recently in which McCrory has gotten involved in state policy on behalf of a campaign donor.

I asked to talk with him (McCrory) about it, and I spent a little time explaining it to him. And that’s when he got the troopers involved and the DOT involved.
Charlie Shelton, Republican fundraiser and Surry County businessman

The News & Observer and Charlotte Observer reported in October that McCrory had convened a meeting last year to discuss private prison maintenance contracts held by Graeme Keith of Charlotte, a friend who had contributed $12,000 to McCrory’s campaigns from 2008 through 2012.
Keith wanted to expand the contracts to all 57 prisons; the state eventually extended the contracts at three prisons, over the objections of senior prison officials.

A focused response

Shortly after McCrory’s meeting with Shelton, a March 10 Highway Patrol memo directed five troopers to “patrol the exit ramps on I-77 in Surry and Yadkin for parking violations on the ramps ... throughout your work days and not just once.”
But Shelton was not satisfied with the governor’s response.
“There still doesn’t seem to be a lot of difference – trucks are still parking on the exit ramps,” Cindy McBride, a Shelton employee, wrote in a March 31 email to McCrory. She said Shelton wanted the governor to telephone him “to see if there is anything else we can do to clean this up,” and she added his cell phone number.
“Thanks,” McCrory replied by email, in a message copied to Col. Grey and his boss, Frank Perry, the state public safety secretary. “I was told we are now checking. Now need to verify. Thanks. Pat.”
Shelton says he was concerned about “trash and safety” around the ramps all along I-77 – not just at Exit 93, and not out of concern for the family business.
“This has nothing to do with Shelton Vineyards, nor with our wine business here,” Shelton said. “That’s not my reason for this. It’s all up and down the state.”
But after Shelton registered his second complaint – and even after the initial enforcement effort had covered two counties – Highway Patrol officials responded as if their problem started and ended at Exit 93.
“For a reference point, the NB (northbound) exit ramp and NB on-ramp are directly in front of ‘Shelton Vineyards,’ ” said an April 1 memo to local troopers in Surry County. (Actually, as Shelton points out, the winery is two miles east of I-77. The Shelton brothers do own a Hampton Inn that fronts the I-77 off-ramp.)
An April 2 email to Col. Grey from Lt. Col. Billy Clayton, the patrol’s deputy commander, identified six sergeants and senior officers who were engaged along with local troopers in “a more enhanced plan of action” to solve the problem of trucks “still parking illegally on the Zephyr Road Ramp to I-77.”
Dobson police and the Surry County sheriff would be asked for help in “scheduling personnel at critical times to monitor the area for compliance,” Clayton wrote.
All of this effort was aimed at enforcing General Statute 20-140.3(5), which makes it illegal, except in an emergency, to “stop, park or leave standing any vehicle” on the right-of-way of an interstate highway. That language includes the paved and unpaved shoulders of the on- and off-ramps.
Violation is an infraction, punishable by a $25 fine plus $188 court costs.
Sgt. Mike Baker, a Highway Patrol spokesman, said Grey was not available for comment. He said troopers have stepped up enforcement of the no-parking law without cutting back on their other duties.
“They’re doing what they can to focus on all motor vehicle violations, not just the improper parking,” Baker said.
Troopers wrote just 70 tickets for illegal interstate parking across North Carolina in 2014, after having averaged 152 tickets a year since 2008, records show.
Those numbers will be higher for 2015. After logging 30 tickets statewide through the end of May, troopers kicked their parking enforcement into high gear.
According to preliminary figures from a special database the Highway Patrol created for this enforcement effort, 261 no-parking tickets were issued on interstate highways across the state during June, July and August – including 139 in Surry County alone.
Sometimes troopers wrote a dozen or more parking tickets in a single day on I-77 in Surry County, and not just at Exit 93. Apologetic troopers told truckers they had been ordered to cruise the exit ramps.
“He said that was his task that night,” trucker Trey Evans said of the trooper who woke him up at 10:47 p.m. June 3, on the Exit 100 ramp north of Dobson. “He was concentrating just on the parked commercial vehicles.”

No place to park

Dozens of citations on file in Surry County show that truckers frequently gave the same explanation for parking alongside the I-77 ramps: They had no other choice.
They were sleepy; one driver said he was weaving on the highway. Or they had run up against federal safety limits designed to fight fatigue by limiting the hours they can drive without rest.
And sometimes there was no other place to park.
Legal parking is available at commercial truck stops including one at Exit 100 that has spaces for 150 trucks, and at state-maintained rest areas including the North Carolina welcome center near the Virginia border, five miles away.
But drivers often told troopers those places and other truck stops on I-77 were filled up. That’s why Evans parked on the ramp that night.
“I was out of time,” said Evans, 41, of Sylvania, Ga. “I had to take a break. ...
“I told him: You know that fatigued driving is a hazard on the road. There was nowhere for me to park. He told me I should have planned better.”
But Evans said there was no way he could know whether he would find legal parking options that night.
The trooper told Evans he could not order him to start driving again in violation of federal trucking “hours of operation” rules. He left a sticker on Evans’ truck as a signal that other troopers should not wake him up and ticket him again.
That didn’t always work. Rookie trucker Adam Clements and his training supervisor went back to sleep after a trooper ticketed them at 9:40 p.m. June 2 on a ramp at Exit 93.
“Then during the night, another trooper came by,” said Clements, 30, of Florence, S.C. “We just showed him the ticket we had already received, and he went on.”
Truck driver Metdepenningen of Concord was philosophical about his parking ticket. He said he had not been aware that he was violating the law. And he agreed with Shelton’s complaint that drivers sometimes leave trash along the roadside.
But other truckers said the new enforcement push was unfair.
“What’s worse?” Clements asked. “Driving beyond your hours or parking where it’s not legal?”
Evans complained about paying the combined penalty of $213, but said he will put the check in the mail.
“I’ve got two kids, and I’m a single dad,” Evans said. “I do everything right and try to pay my bills. That $200 comes off my family’s table. ... I’ve never had an officer wake you up in your sleep time, unless it’s an emergency.”

What’s worse? Driving beyond your hours or parking where it’s not legal?
Adam Clements, truck driver, ticketed on Exit 93 ramp

He said he used to spend about $50,000 a year on fuel at the Exit 100 truck stop on his biweekly runs up to Boston, where he had just delivered a load of Vidalia onions when he was ticketed in June. Now Evans vows never to spend another dollar in North Carolina.

More campaign money

After Grey announced the statewide enforcement campaign in June, the Shelton brothers expressed their gratitude.
Both Ed and Charlie signed a June 5 letter of appreciation to Grey, saying they also had thanked McCrory for focusing attention on I-77 “and its exit ramps that were being abused by the trucking industry.”
Meanwhile, McCrory’s re-election campaign received checks for $3,000 apiece from Charlie and Ed Shelton on June 11 and 19, respectively. Charlie Shelton said the donations had nothing to do with their appreciation for the Highway Patrol’s parking enforcement.
“No,” Shelton said last week. “I’m trying to do something to make this state look better. I don’t need any favors out of the governor for me personally.”
He said he wasn’t ready to relax pressure on state leaders to stop truckers from parking on the I-77 ramps.
“It got better, all the ramps were cleaned up for a few months,” Shelton said. “But it’s getting worse again.
“The only way you’re going to solve it is giving tickets until you get this problem solved,” Shelton said. “It will take a year or two to get these people to understand they can’t do this. This is 2015. We don’t need that stuff going on.”

Database editor David Raynor contributed.

Bruce Siceloff:

Read more here: http://www.newsobserver.com/news/politics-government/state-politics/article44982354.html#storylink=cpy

Sleeping on Side of Road in North Carolina

Turns out that driver safety is really not that big of a concern in NC. 

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Road Worrier: NC troopers ordered to catch truckers napping

Drivers approach their semi-truck while parked in a rest area of the Truckstops of America Travel Center at the Highway 61 exit in Guilford County, NC Friday, June 5, 2015. This popular truck stop is on the busy I-40/85 interstate corridor through North Carolina. Harry Lynch hlynch@newsobserver.com

By Bruce Siceloff
bsiceloff@newsobserver.com

RALEIGH

Sleepy truck drivers who park for naps alongside interstate on-ramps can expect rude awakenings this summer from state troopers under orders to enforce an overlooked no-parking law.
The first wake-up message was delivered in a May 26 “attention all truckers” memo from the Highway Patrol that focused on Interstate 77 in the western Piedmont. It spelled out a stern prohibition against parking on the shoulders, exit ramps and on-ramps of interstate highways and rest areas, and at weigh stations after hours.
Trucking companies complained. The Highway Patrol retracted the I-77 memo, announced a statewide focus, in friendlier language, that included cars as well as trucks – and added thanks to the N.C. Trucking Association for helping to spread the word.
“We’re not picking on truckers or commercial drivers,” said Sgt. Michael Baker, a patrol spokesman. “We’re asking all motorists to plan their routes and make sure they have proper stopping points.”
A state traffic law forbids drivers to “stop, park, or leave standing any vehicle, whether attended or unattended, on any part or portion of the right-of-way” of an interstate highway – except in emergency. The public right of way includes the paved and dirt shoulders along the ramps as well as the main road, Baker said.
“This has come out of our commander’s office,” Baker explained “The colonel has traveled the state and noticed a lot of this. We’re basically asking our troopers to step up the enforcement of that statute.”
Col. Bill Grey, the Highway Patrol commander, called it a safety issue.
“With the increased traffic volume across the state, it is imperative that we keep our highways free of roadside hazards to include improperly parked vehicles,” Grey said in a news release.
Citing traffic statistics from the state Department of Transportation, Baker said parked vehicles were a factor in 101 out of the 512 deaths recorded in interstate highway crashes over the past five years.
Death can come when a driver veers off the road and clips a vehicle parked on the shoulder. The victims can include a motorist changing a tire or a police officer writing a ticket.
But have any of these crashes involved trucks parked up along the ramps – well away from the freeway traffic itself? Baker said he didn’t know of any such cases.
Truckers say the Highway Patrol may be missing the real safety issues raised by those naps on the freeway ramp. They stop there because they’ve run up against federal work limits – designed to reduce driver fatigue – or because they really do need some shut-eye.
“It’s crucial for truck drivers to be able to safely park and rest,” said Norita Taylor, spokeswoman for the Owner-Operator Independent Drivers Association, based in Missouri. “Truckers are not able to control their schedules and are also required to comply with hours of service regulations. If you see a truck parked on an entrance ramp, it’s likely because he or she had no other choice.”
Hours of service rules require truckers to stop after they’ve worked 14 hours in 24, or have driven 11 of those hours. Company-employed drivers rely on their dispatchers to schedule their trips so they’ll be able to rest at a safe and legal spot, such as a truck stop. Independent drivers have more responsibility for their own schedules.
“If trucking companies work with their drivers, they know their hours are ending at a certain time,” said Ernie Brame, manager of the Kenly 95 Petro truck stop on Interstate 95 at Kenly, which provides space where as many as 400 truckers can spend the night. “They need to plan their trip so they’re at a place where they can stop. And if they run out of time, they’re going to have to stop where they are and pull off on an exit ramp.”
Truckers and other drivers need to find a safe, legal place to nap, Baker said.
“We’re not going to make a trucker drive down the highway if he’s tired or he’s run out of hours,” Baker said. “But there have been times we’ve come upon a driver who had run out of hours, and instead of driving 2 more miles down the road to a truck stop, they pulled over.”
Interstate parking is a minor offense – an infraction – under state law. It may be one of those charges that officers file only in the event of an accident. State court statistics suggest that troopers won’t have to work very hard to beef up their ticket numbers this year.
In 2014, North Carolina officers cited only 177 drivers for interstate-parking violations, down from an average 285 over the preceding five years.
How does that compare with other infractions? The citation counts vary – but not in any way that necessarily matches the seriousness, or apparent prevalence, of the violation.
In 2014, North Carolina officers cited 110,622 drivers for failure to wear seat belts. But only 2,575 were charged with texting while driving, and just 53 drivers under 18 years old were charged with using cellphones. It would be easy to improve upon these numbers, too.
On the other hand, 1,429 drivers were cited last year for one of the silliest offenses in North Carolina traffic law: failure to sign the vehicle registration card.
So when that trooper rousts you from your nap and demands your license and registration, ask her if you can borrow her pen first.

Siceloff: 919-829-4527
bsiceloff@newsobserver.com
or nando.com/roadworrier
Twitter: @Road_Worrier

Road Worrier Blog

  

North Carolina DWI Grossly Aggravating Factors

www.kisslinglaw.com

The following are Grossly Aggravating Factors for DWI sentencing.

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

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

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

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

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

Each prior conviction is a separate grossly aggravating factor.

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

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

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

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

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

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

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

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

DWI Aggravating Factors

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Aggravating Factors for DWI are as follows:


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

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

(2)        Especially reckless or dangerous driving.

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

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

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

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

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

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

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

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

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

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

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

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

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

DWI Mitigating Factors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New laws on Sexual Offenses

Explanation of new laws by the NC School of Government.

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

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

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

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

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

New law on Possession of Marijuana

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Law may now require officers to arrest rather than merely cite for possession of less and 1/2 ounce of marijuana.  Below is a great article by the NC School of Law.
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.
Before this session. Until this legislative session, G.S. 15A-502(a) generally permitted criminal defendants to be fingerprinted only if (a) they were arrested, rather than cited or summoned to court, (b) they were “[c]omitted to imprisonment upon conviction,” or (c) they were convicted of a felony. Meanwhile, G.S. 15A-502(a1) generally required “the arresting law enforcement agency” to fingerprint “a person charged with the commission of a felony.”
The combined effect of these two provisions was that all felony defendants were arrested, not summoned. (Citations can’t be used to charge felonies because G.S. 15A-302 limits their use to misdemeanors and infractions.) Although by statute summonses may be used for any “crime or infraction,” and although the official commentary to the statute says that they are appropriate for use with felonies, see G.S. 15A-303 & official commentary, many people reasoned (1) that all felony defendants must be fingerprinted, and (2) they may be fingerprinted only if arrested, so (3) they must be arrested rather than summoned. Thus, the AOC summons form, AOC-CR-113, is captioned “Misdemeanor Criminal Summons,” suggesting that felonies should not be charged by summons. Not everyone agrees with this reasoning, but my impression is that it is the prevailing view.
By contrast, fingerprinting was not mandated for misdemeanor defendants, so they could be charged by summons – or by citation – if circumstances made that more appropriate than an arrest.
2015 gun bill requires fingerprinting for certain misdemeanor defendants. This session, the General Assembly passed S.L. 2015-195, a bill focused on amending the firearms laws. It altered G.S. 15A-502 to make it “the duty of the arresting law enforcement agency to cause a person charged with the commission of [specified] misdemeanors to be fingerprinted, for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS), and to forward those fingerprints to the State Bureau of Investigation.” (S.L. 2015-267 removed from the statute the phrase “for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS),” but it left the directive of the statute unchanged. Both laws are already in effect.)
Relatively few misdemeanors are covered by the new law, including driving while impaired and certain domestic-violence-related offenses. It appears that the misdemeanors were selected because they relate in some way to conditions that would prevent a person from lawfully owning a gun. For example, individuals who are subject to a DVPO or who have been convicted of a domestic violence misdemeanor are prohibited from possessing a firearm under federal law. See generally 18 U.S.C. § 922(g). And, as Shea discussed here, in some instances a DWI conviction may result in a person being ineligible to possess a firearm.
Misdemeanor drug possession included in new law. Most of the covered misdemeanors normally resulted in arrests anyhow, so fingerprinting was at least a possibility. But there’s one very significant exception: the law applies to misdemeanor possession of a controlled substance under G.S. 90-95(a)(3). I speculate that this was included in the bill because 18 U.S.C. § 922(g)(3) makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm.
A misdemeanor possession charge normally involves possessing 1.5 ounces of marijuana or less, most often half an ounce or less. Many officers prefer to issue citations for these offenses rather than making arrests. These offenses are incredibly common, with over 35,000 charges last year for possession half an ounce of marijuana or less and over 2,000 for possession of more than half an ounce but not more than 1.5 ounces.
Does the new law require arrests? A number of officers and others have asked about the meaning of the new provision. The wording of the provision is very similar to the wording of the felony fingerprinting provision, which has generally been read to require arrests and to preclude summonses for felony defendants. If the new provision is read the same way, officers would need to arrest and fingerprint rather than cite or summon every person to be charged with misdemeanor possession of a controlled substance. That means more work for officers, more work for magistrates, more work for clerks, and arrest records for more defendants. Or else it means more officers forgoing charges to avoid the burdens associated with an arrest. Of course, if that’s the law, it’s the law, and perhaps there are benefits to including more misdemeanants’ fingerprints in the system. At least one of my colleagues supports this reading.
That’s not the only possible reading of the provision, however. One could read it so say that if a person charged with a misdemeanor drug possession offense is arrested, he or she must be fingerprinted, but not to require an arrest. In support of this view, one could argue that the legislature knows how to enact clear mandatory arrest provisions, see G.S. 50B-4.1(b) (officers “shall arrest” when they develop probable cause to believe a person has violated a DVPO), yet it didn’t do so here. My impression is that many law enforcement agencies are adopting this interpretation, and it’s hard to see how such an interpretation would come before a court for review. Does that open the door to reconsidering the practice regarding felonies? At least one of my colleagues thinks that it should.
I have also heard the suggestion that an officer may still cite or seek a summons for a person charged with a misdemeanor drug possession offense, but that the officer must fingerprint the person anyhow. I don’t think that interpretation works, as it would render the reference to the “arresting law enforcement agency” meaningless. Also, as a practical matter, roadside fingerprinting would be a nightmare.
This strikes me as a situation in which a bill may have unintended consequences that are greater than its intended consequences. But then again, perhaps the General Assembly intended all of the bill’s consequences – with little legislative history available, it is hard to know. As always, readers’ insights and perspectives are welcome.