Can a Misdemeanor Conviction for Driving While Impaired Be Expunged?

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

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 ___, 763 S.E.2d 17 (2014) (unpublished) (finding that because conviction for misdemeanor cruelty to animals was not Class A1 misdemeanor and did not fall into excluded categories, it could be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

Wake County Improper Equipment

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Wake County has finally stared reducing speeding tickets to Improper Equipment.  This applies to speeding tickets only.  The criteria are as follows:
1. The driver must have a certified driving record.
2.  The case must be resolved in disposition court and must be resolved by the third setting
3.  The driver must not have more than 1 moving violation in the prior three years
4.  The driver must not have more than 3 moving violations in the prior ten years
5.  Drivers under the age of 21 must first complete a 4 hour safe driving course at an approved driving school prior to resolution of the case.
6.  Drivers charged with speeds in excess of 85 MPH or more than 20 MPH over the speed limit are not eligible.  Speeding in a work zone or school zone may not be reduced to an improper equipment.
7.  The driver cannot have previously received a reduction to improper equipment in the prior three years.
8.  The driver must pay the $50 improper equipment fee and a $25 fine.

The DA is also now willing to dismiss driving while license revoked charges if the driver is revoked for a Failure to Appear or non payment of a previous ticket (no more than 2), There is no prior Driving While License Revoked conviction, the license has been revoked, and the driver shows that they have been trying to get their license reinstated.

Raleigh City Code v. State Statue Violation

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I am often asked about getting a speeding ticket reduced to a City Code Violation.  While this was common in years past, it is no longer.  Below is a great post by Shea Denning of the School of Government on this issue.

Suppose a North Carolina city adopts an ordinance establishing a local speed limit of 25 miles per hour for all city streets that are not otherwise marked. Signs are posted on city streets reflecting the 25 mile per hour limit. Absent this ordinance, state law would provide for a speed limit of thirty-five miles per hour inside the municipal corporate limits. The city’s municipal code provides that violations of its provisions are not governed by G.S. 14-4, which otherwise would render the violation of a local ordinance regulating traffic an infraction. The municipal code also states that speeding on a city street is punishable by a civil penalty of $75 and requires that payment be made to the town hall. A local law enforcement officer stops a car that is traveling 40 miles per hour on a city street. May the officer issue a civil citation to the driver, requiring payment of the $75 penalty?  May the officer cite the driver for speeding in violation of state law, an infraction?  May the officer choose between these two methods of enforcement?

Cut to the chase.  No.  Yes.  And no.  Those are my answers.  Here’s my explanation.
State law regulating speeding.  G.S. 20-141 prohibits various varieties of speeding on streets and highways within North Carolina.  G.S. 20-141(b) provides:

Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of the following speeds:
(1) Thirty-five miles per hour inside municipal corporate limits for all vehicles;
(2) Fifty-five miles per hour outside municipal corporate limits for all vehicles except for school buses and school activity buses.

G.S. 20-141(e) permits local authorities to “authorize by ordinance higher or lower speeds than those set out in subsection (b) upon all streets which are not part of the State highway system.” Such speed limits are effective “when appropriate signs giving notice thereof are erected upon the part of the streets affected.”
Violations of G.S. 20-141(b) are infractions punishable by a fine of not more than $100.  G.S. 20-176.
Thus, when a person drives a vehicle in excess of 35 miles per hour on a city street with a 35 mile per hour speed limit, that offense clearly is a violation of G.S. 20-141(b), and is punishable as an infraction. A person charged with such an infraction must be ordered to appear in district court, where, if found responsible, the person may be ordered to pay a fine of up to $100 and court costs. See G.S.15A-1114, 20-176.
A city may not adopt an ordinance prohibiting conduct identical to that constituting a crime or infraction under state law. G.S. 160-174(b)(6). Thus, it is clear that when the default speed limits under G.S. 20-141(b) apply, speeding in excess of those limits is an infraction under state law and may not also be defined as a local ordinance violation.
Some believe that a different rule applies when the city departs from the presumptive speed limits set forth in G.S. 20-141(b). They reason that G.S. 20-141(b) defines a crime “except as otherwise provided,” and that local ordinances authorizing higher or lower speeds adopted pursuant to G.S. 20-141(e) do otherwise provide. Thus, the argument goes, the violation when a person speeds over a locally established speed limit is an ordinance violation, rather than a violation of state law. As a result, the offender may properly be cited solely with violating the ordinance, which benefits the offender and, in some circumstances, the city. North Carolina’s Division of Motor Vehicles (DMV) does not maintain a record of a driver’s adjudication of responsibility for local ordinance violations as it does for records of violations of the State’s motor vehicle laws.  As a result, no license or insurance points are assessed for local ordinance violations. And when the ordinance violation is not punished as an infraction in district court, no court costs are assessed. Furthermore, if the violation is solely considered a local ordinance violation and not a violation of the State’s penal laws, then the city may keep the proceeds rather than remitting them to the local school board.
As I’ve already said, I don’t share this view. Though G.S. 20-141(b) is perhaps inartfully drafted, I understand it, when read in conjunction with G.S. 20-141(e), to prohibit all speeding that exceeds either the default or the posted speed limits.  And while G.S. 20-141(e) clearly authorizes local authorities to set their own speed limits, it does not authorize them to enact an ordinance prohibiting driving in excess of those speed limits as that conduct already is prohibited by G.S. 20-141(b). To interpret the provisions otherwise results in a hodgepodge enforcement scheme, where the nature of the violation and the applicable punishment depends upon whether a city happens to have departed from the default limitations in G.S. 20-141(b). On city streets where the speed limit is 35 miles per hour, only a state law infraction could be charged. On streets with a higher or lower speed limit, officers would have a choice as to whether to charge an infraction or an ordinance violation, with the latter charges inuring to the driver’s benefit as well as, perhaps, the city’s. Such inconsistent regulation strikes me as entirely inconsistent with the comprehensive scheme in Chapter 20 regulating the operation of vehicles, and, thus, unlikely to reflect the legislature’s intent.

Proposed New DWI Laws in North Carolina

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

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

IMPLIED CONSENT TO BLOOD TEST

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

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

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