Monday, April 27, 2015

North Carolina Speeding in a Work Zone

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The North Carolina State Legislature is looking at the laws for Speeding in a Work Zone and whether the law should apply when there are no workers.  The current law applies 24 hours a day regardless if there are workers present or not.
Below is the article from the News and Observer on the new proposal.

Drivers would be spared the state's $250 penalty for speeding through highway work zones in cases where no construction workers were present at the time, under legislation moving quickly through the House. The House Transportation Committee approved the bill Wednesday after emotional debate that featured the obituary of a state Department of Transportation worker who was killed March 23 in a Goldsboro work zone crash. "I find it morally wrong to jeopardize their safety as they put their lives in harm's way to make the roads safer for us," said Rep. Dean Arp, a Union County Republican, after handing out copies of the obituary for William Grey Bailey, 35, of Kenly. "The increased penalty for speeding through a work zone is an effective deterrent." But the bill's sponsor, Rep. Sarah Stevens, didn't back down. She said the driver responsible for Bailey's death was impaired and would be punished for more serious offenses. Stevens, a Surry County Republican, said her bill would not change the reduced speed limits posted to make drivers slow down in work zones. "It just says if workers are not present, we should not assess a $250 penalty," she said. "The problem still occurs in my county, where they've got a speed trap set up in this work zone where there's no work going on." Rep. Larry Yarborough, a Person County Republican, agreed. "Half the drivers are not slowing down because they see there's no construction going on and no reason to go slower," Yarborough said.
Arp said DOT reduces the speed limit and posts signs warning of $250 tickets for violators only at a small fraction of work sites. He said the department had 734 active work zones across the state at the first of April, but only 30 where the $250 speeding penalty was applied. Rep. Jay Adams, a Catawba County Republican, said work zone restrictions were also intended to protect drivers from construction-related hazards. The committee approved Stevens' bill on a split vote and sent it for further consideration to a judiciary committee chaired by Stevens.
Also Wednesday, the House Transportation Committee endorsed a bill to eliminate tolls on all state ferries. DOT collects tolls on three of its seven ferry routes. The House and Senate have tussled over ferry tolls for several years. A Senate push to require tolls on all seven routes prevailed a few years ago, but Gov. Bev Perdue blocked its implementation and legislative leaders did not force the issue.(Bruce Siceloff, THE NEWS & OBSERVER, 4/23/15).

Monday, April 20, 2015

DWi and gun possession

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

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

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

Tuesday, April 14, 2015

Wake County DWI Attorney

DWI Attorney Services for Austin and Central Texas

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

Top 3 Questions About Level A1 DWI Sentences

The most serious level of misdemeanor DWI is Aggravated Level One, which I generally refer to as Level A1.  A defendant convicted of driving while impaired is subject to sentencing at Level A1 if three or more grossly aggravating factors apply.  G.S. 20-179(c). Typically, defendants sentenced at this level are repeat offenders, though it is possible to reach Level A1 if one drives while impaired with a person under 18 in the vehicle, with a license that is civilly revoked for an earlier DWI charge that did not result in conviction, and, in the process, causes serious injury to another.
A defendant sentenced at Level A1 may be fined up to $10,000 and must be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. G.S. 20-179(f3). The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days.
Because Level A1 is a relatively new level of punishment—it applies to offenses committed on or after December 1, 2011—many litigants, judges, and defendants have questions about the legal requirements for such sentences and how the sentences are administered.
Below are the three questions I hear most often.
1. May the judge credit against a Level A1 sentence the time a defendant spent in inpatient treatment?
Yes. G.S. 20-179(k) allows a judge to credit against a term of imprisonment ordered for any level of DWI, including Level A1, the time a defendant was an inpatient at a treatment facility operated or licensed by the State for the treatment of alcoholism or substance abuse. To be eligible for credit, the treatment must have occurred after the defendant committed the DWI offense for which he or she is being sentenced.
The judge also may order that special probation (in other words, a split sentence) imposed pursuant to a suspended Level A1 sentence be served at a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. The defendant must have been accepted by the facility for admission or commitment as an inpatient and must bear the expense of any treatment unless the judge orders the State to absorb the costs.
2. How much of an active Level A1 sentence will a well-behaved defendant actually serve?
The defendant will serve the maximum term of imprisonment imposed, less four months. A defendant sentenced at Level A1 is not eligible for parole.  The defendant must, however, be released to post-release supervision four months before the expiration of his or her maximum term. No good time credit is being awarded to reduce Level A1 sentences, even though the applicable Division of Adult Correction (DAC) regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time credit at the rate of one day deducted for each day served with good behavior. Though the regulations do not distinguish among levels of DWI, DAC has determined that the credit does not apply to Level A1 sentences.
Thus, regardless of how he or she behaves, a defendant sentenced to 36 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 32 months.  A defendant sentenced to 12 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 8 months imprisonment.
3. May a judge allow a defendant to serve a Level A1 sentence on weekends?
Yes. A judge may order a term of imprisonment for any level of DWI to be served on weekends. G.S. 20-179(s), which applies to all levels of DWI sentencing, provides that if the defendant is ordered to a term of 48 hours or more, he or she must be required to serve 48 continuous hours of imprisonment to receive credit for time served. This means that a judge could order an entire 36-month Level A1 sentence to be served in 48-hour increments.
Split sentences for Level A1 DWIs also may be served on weekends and must likewise be served in 48-hour increments.  Any non-continuous period of imprisonment for a split sentence may only be served in a designated local confinement or treatment facility rather than in a DAC prison.  See G.S. 15A-1351(a).

Tuesday, April 7, 2015

Can Law Enforcement Use Drones to Issue Traffic Tickets in North Carolina

Image result for law enforcement and drones

The current answer is no.  However, there are efforts being made by law enforcement and the State to change that.  Real the article below to see the steps that need to be taken before that can be done.

As always, thanks to the great legal minds at the North Carolina School of Government.

Drones are remote-controlled aircraft. They can be equipped with cameras, and may be useful for surveillance. Does the use of drones by law enforcement officers raise any legal concerns?
The short answer is yes, in at least four ways.
Federal approval required. First, it appears that before any governmental entity may use drones, the entity must obtain a Certificate of Authorization from the Federal Aviation Administration. The FAA describes the COA process briefly here. However, failure to obtain FAA approval likely would not require the suppression of any evidence, such as video footage, obtained by an unauthorized drone. Violations of federal statutes and regulations don’t normally require suppression, so long as the violations are not also constitutional violations. (Constitutional violations are discussed below.)
State CIO approval required. Second, before any governmental entity in North Carolina may use drones, the entity must obtain approval from the State CIO. This requirement is the result of several legislative enactments:
  • Section 7.16 of the 2013 appropriations bill, L. 2013-360, provides that “[u]ntil July 1, 2015, no State or local governmental entity or officer may procure or operate and unmanned aircraft system . . . unless the State CIO approves.”
  • Section 7.11 of the 2014 appropriations bill, L. 2014-100, extends the ban on unapproved governmental use of drones through December 31, 2015.

Would a violation of this requirement necessitate the suppression of any evidence obtained thereby? Maybe. Although the statutory exclusionary rule in G.S. 15A-928 applies only to violations of Chapter 15A, the appellate courts have sometimes suppressed evidence as a sanction for other statutory violations by state actors, as Shea noted here in connection with a violation of Chapter 20.
Compliance with new drone statute required. Third, section 34.30 of the 2014 appropriations bill, S.L. 2014-100, enacted new Article 16B of Chapter 15A. That article generally prohibits the use of drones to conduct surveillance of “[p]rivate real property,” “[a] person,” or “a dwelling occupied by a person and that dwelling’s curtilage” without consent. But it contains exceptions allowing law enforcement to conduct drone surveillance with a warrant, or without a warrant when there is a high risk of a terrorist attack; when the surveillance involves an area that is in an officer’s plain view; or when exigent circumstances exist. It also allows law enforcement “[t]o photograph gatherings to which the general public is invited on public or private land.”
The statute contains an exclusionary rule and provides for a civil cause of action against violators. The appropriations bill also enacted new Article 10 of Chapter 63, requiring public drone operators to be trained and licensed.
The statute doesn’t define “surveillance,” which has led some to criticize the statute for vagueness. The exception allowing law enforcement officers to photograph public gatherings on private property has also been controversial.
Compliance with the Fourth Amendment required. Fourth, any law enforcement activity involving drones must comply with the Fourth Amendment. However, it is far from clear how the Fourth Amendment applies to drones. Will they be governed by the precedents concerning aircraft flyovers, like California v. Ciraolo, 476 U.S. 207 (1986), which generally allow considerable leeway to law enforcement? Does the increasing prevalence of hobbyists’ drones mean that there can be no reasonable expectation of privacy from drones? Or does the existence of inexpensive drones present a novel Fourth Amendment concern that will require a novel doctrine to address it, as the Supreme Court arguably charted new courses regarding GPS tracking in United States v. Jones, 565 U.S. __ (2012), and regarding cell phone searches incident to arrest in Riley v. California, 573 U.S. __ (2014)? There are not many court decisions in this area, but there are plenty of law review articles, including Chris Schlag, The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights, 13 U. Pitt. J. Tech. L. & Pol’y 1 (2013); Timothy T. Takahashi, Drones and Privacy, 14 Colum. Sci. & Tech. L. Rev. 72 (2013); Andrew B. Talai, Comment, Drones and Jones: The Fourth Amendment and Police Discretion in the Digital Age, 102 Cal. L. Rev. 729 (2014); and Matthew R. Koerner, Comment, Drones and the Fourth Amendment: Redefining Expectations of Privacy, 64 Duke L.J. 1129 (2015).
Other possible issues. In certain cases, drone use might implicate other legal concerns. For example, the use of a drone to make audio recordings of otherwise private conversations might run afoul of the electronic surveillance statute, G.S. 15A-287.
Concluding thoughts. As far as I know, law enforcement agencies in North Carolina aren’t using drones now. Recall that State CIO approval is required to use drones prior to December 31, 2015. In March 2014, the State CIO issued a report and made a presentation on drone use to a legislative committee. The presentation stated that NC State’s Next Generation Air Transport project was the only governmental entity approved to use drones at that time. (Of course, some agencies might have sought approval since that time.) A few agencies apparently own drones, presumably purchased before the 2013 moratorium took effect, as reported in this Independent Weekly story. Perhaps agencies are waiting for the legal landscape to settle. The General assembly is considering more changes to the drone laws this session, including House Bill 4, which appears to me to be technical in nature, and Senate Bill 622, which would remove the exemption that allows law enforcement surveillance of gatherings to which the general public is invited on private land. In the long run, though, the use of drones by law enforcement is likely inevitable.