Monday, June 29, 2015

Wake County Underage Possession of Alcohol

Great article on underage possession of alcohol.  One should note that it is against NC law for a parent to serve or provide alcohol to their minor children.

A minor in North Carolina may not purchase, possess, or consume alcohol with few exceptions (see below). (North Carolina Gen. Stat. Ann. Section 18B-302(b).) It is also illegal for anyone to sell or give alcohol to a minor; or to otherwise help a minor to obtain alcohol. (North Carolina Gen. Stat. Ann. Section 18B-302(a)(a1)&(c).)
A minor may not use fraudulent or altered identification (or someone else’s identification) to enter an establishment licensed to sell alcohol; or to induce the sale or service of alcohol. An adult is also prohibited from allowing a minor to use the adult’s identification to obtain alcohol. (North Carolina Gen. Stat. Ann. Section 18B-302(e)&(f).)
Aiding or abetting. Minors who illegally help another minor to obtain alcohol can be charged with a Class 2 misdemeanor. (North Carolina Gen. Stat. Ann. Section 18B-302(c)(1).) Adults who illegally assist a minor in obtaining alcohol-- including allowing the minor to use the adult’s driver’s license or other identification to obtain alcohol—can be charged with a Class 1 misdemeanor. (North Carolina Gen. Stat. Ann. Section 18B-302(c)(2)&(f).)
Purchase, possession, or consumption by a minor who is 19 or 20. This type of violation is a Class 3 misdemeanor. (North Carolina Gen. Stat. Ann. Section 18B-302(i).)

Exceptions to the Rule

North Carolina recognizes three exceptions to the general rule prohibiting minors from possessing or consuming alcohol.
  • Religious participation. A minor may possess and consume wine for sacramental purposes in an organized church. (North Carolina Gen. Stat. Ann. Section 18B-103(8).)
  • Employment. Minors may possess, transport, or dispense—but not consume—alcohol during the course of employment in an establishment licensed to sell alcohol. Such employment must also be lawful under North Carolina’s youth employment statutes. (North Carolina Gen. Stat. Ann. Section 18B-302(h).)
  • Education.  Minors may possess and consume alcohol under the direct supervision of an instructor, during the course of a licensed and accredited culinary program, when such consumption is a required part of the curriculum. (North Carolina Gen. Stat. Ann. Section 18B-103(11).)


Minors who violate the laws against purchase, possession, or consumption; and adults who violate the law against giving alcohol to a minor or allowing a minor to use the adult’s identification to obtain alcohol, will face charges of a Class 1 misdemeanor, which carries the consequences described below.
Convicted offenders will also have their conviction reports sent to the Division of Motor Vehicles. The division will revoke the offender’s license for one year. (North Carolina Gen. Stat. Ann. Section 20-17.3.) If the offender’s license is already suspended, the one year revocation will begin when the current suspension ends.
Adult violators who gave alcohol to a minor or aided a minor in obtaining alcohol may be eligible for limited driving privileges. (North Carolina Gen. Stat. Ann. Section 20-17.3.) Check with your local court clerk to see if this privilege applies to your situation.

Misdemeanor Sentences

North Carolina punishes misdemeanants according to the level (Class) of the crime. Repeat offenders are subject to jail time (not shown).
  • Class 1: up to 45 days of “community punishment” (probation), plus the possibility of a fine, to be determined by the judge
  • Class 2: up to 30 days of community punishment, plus the possibility of a fine of up to $1,000
  • Class 3: up to 10 days of community punishment, plus the possibility of a fine of up to $200. (North Carolina Gen. Stat. Ann. Section 15A-1340.23.)

Selling Alcohol to a Minor

It is illegal in North Carolina to sell or give alcohol to a minor. However, the seller has a defense against having violated this law if:
  • the buyer provided state or federal photographic ID showing that the buyer was of legal age to make the purchase, or
  • the seller relies on other facts that reasonably indicated at the time of sale that the buyer was older than 21. (North Carolina Gen. Stat. Ann. Section 18B-302(d)(1)&(2).)

Alcohol Screening Tests

If a police officer has probable cause to believe that a minor has consumed alcohol, the officer may require the minor to submit to an alcohol screening test. Such a test may use only devices approved by the North Carolina Department of Health and Human Services. The results of this screen—or a refusal to take such a test—are admissible in court or administrative proceedings. (North Carolina Gen. Stat. Ann. Section 18B-302(j).)

Getting Legal Help

Because local procedures and attitudes towards the North Carolina minor in possession laws vary by community, it is a good idea to consult with a lawyer who is familiar with how these cases are handled in your area. This will give you a better chance of achieving the most favorable outcome under the unique circumstances of your case.

Tuesday, June 23, 2015

DWI Questions

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Here are some great DWI questions.  Thanks to Shea Denning of the NC School of Government for her blog.

  1. Defendant is sentenced on the same day for two DWIs. May the sentences run concurrently?

Yes. Contrary to popular belief, there is no requirement that sentences for misdemeanor impaired driving in violation of G.S. 20-138.1 run consecutively to one another. Indeed, if the judgment does not specify how the sentences are to be served, DWI sentences, like Structured Sentencing sentences, run concurrently.  G.S. 15A-1354(a).
Misdemeanor impaired driving convictions may not, however, be consolidated with one another for judgment. G.S. 20-179(f2). Thus, a separate judgment must be entered for each DWI conviction.  A misdemeanor DWI conviction may be consolidated with a conviction for an offense that carries greater punishment.  Id.
  1. Defendant is sentenced for DWI. How long may his period of probation be?

Five years. And no special findings are required to impose a sentence of that length. G.S. 15A-1342(a). This rule differs from the length-of-probation rules that apply to Structured Sentencing offenses, and which require special findings to impose longer or shorter periods of punishment.  Cf. 15A-1343.2(d).  No particular minimum period of probation is required, but probation imposed for a DWI must be long enough to allow the defendant to satisfy the minimum requirements for a suspended DWI sentence.
  1. Defendant is sentenced for Level A1 DWI. His sentence is suspended on condition that he serve 120 days imprisonment and that he abstain from alcohol for 120 days as monitored by a continuous alcohol monitoring system. May the defendant serve the 120 days on weekends?

Yes. A period of imprisonment imposed as a condition of “special probation” for any criminal offense may be served in nonconsecutive periods, such as on weekends. G.S. 15A-1351(a).  While all special probation confinement for Structured Sentencing convictions must be completed within two years, there is no such limitation on special probation for DWI sentences. DWI defendants must, however, serve this time in 48-hour increments—a requirement that does not apply to Structured Sentencing sentences.  G.S. 20-179(s).
An active term of imprisonment for misdemeanor DWI also may be served in nonconsecutive periods, but must, like periods of special probation, be served in 48-hour increments.  G.S. 20-179(s).
  1. Where are DWI sentences served?

In a jail or treatment facility. Beginning with sentences imposed January 1, 2015, all active sentences for misdemeanor DWI are served through the Statewide Misdemeanant Confinement Program. G.S. 15A-1352(f). Thus, defendants serving active terms of imprisonment will be imprisoned in a county jail, though it may not be the jail in the county of conviction. Imprisonment imposed as a condition of special probation for DWI must be served in a local confinement facility or a treatment facility designated by the judge. G.S. 15A-1351(a). G.S. 20-179(k1) permits a judge to order that a term of imprisonment imposed as a condition of special probation be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient.
  1. Does good time apply?

Yes . . . and no.  DWI defendants sentenced to active terms of imprisonment are awarded good time at the rate of one day deducted from their term of imprisonment for each day served without a violation of inmate rules. G.S. 148-13(b); Department of Public Safety, Prisons, Policy and Procedure, Chapter B, Section .0100. This credit is awarded regardless of where the sentence is served, G.S. 148-13(e), however good time may not reduce a defendant’s DWI sentence below the statutory mandatory minimum for his or her level of DWI, see G.S. 20-179(p). DWI defendants serving imprisonment as a condition of special probation receive no good time credit, see G.S. 148-13(f). Finally, no good time is awarded to reduce the term of imprisonment for a defendant serving a Level A1 DWI sentence, as discussed here.

Monday, June 15, 2015

Failure to Maintain Lane Control

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Many Driving While Impaired charges start with the officer claiming the driver did not maintain lane control.  Below is a great article by Shea Denning on the issue.

Officer Fife is driving one car length behind Briscoe Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car touch the fog line that borders Darling’s lane to the right. Darling drives on the fog line for a couple of seconds before his tires re-enter the unmarked portion of the lane. A half mile later, Darling’s tires again touch the fog line for a few seconds.
Officer Fife is driving one car length behind Charlene Darling at noon on a sunny day when he sees the tires on the right side of Darling’s car cross over the fog line that borders Darling’s lane to the right. Darling immediately moves her car back into the unmarked portion of the lane.
Officer Fife is driving one car length behind Mitch Darling at 9 a.m. on a cold winter morning when he sees the tires on the right side of Darling’s car cross over the fog line that border’s Darling’s lane to the right.  After a few seconds, Darling moves his car back into the unmarked portion of the lane. Officer Fife is aware that the road the two are traveling is icy in spots.
Officer Fife is a stickler for compliance with motor vehicle laws.  He believes it is his duty to stop anyone who commits a traffic offense, no matter how minor. Which Darling or Darlings may he lawfully stop, and why?
G.S. 20-146(d)(1) requires that vehicles “be driven as nearly as practicable entirely within a single lane.” Thus, the first issue for Officer Fife’s consideration is whether the line marking the lane is within or outside of the driver’s lane. A famous law professor recently characterized this question as being akin to a mathematician’s consideration of closed or open intervals and noted that there was “deep disagreement among courts on this question.” Since I’m no mathematician, and this is North Carolina, I’ll avoid the mathematical comparisons and in favor of Fife, the Darlings, and North Carolina law.
Driving on the lane line. Merely touching the lane dividing line or driving on top of it apparently does not run afoul of G.S. 20-146(d)(1). The North Carolina court of appeals determined in State v. Peele, 196 N.C. App. 668 (2009), that the “float[ing]” of a driver’s truck to the dotted line and back to the fog line on a single occasion did not provide reasonable suspicion of a traffic violation. In State v. Kochuck, 366 N.C. 549 (2013) (per curiam, adopting dissenting opinion below), the court considered the totality of the circumstances and relied upon precedent governing weaving within a lane to determine that reasonable suspicion supported the stop of the defendant’s vehicle after the vehicle “momentarily crossed the right dotted line once while in the middle lane” and “later drove on the fog line twice.” See Kochuck, __ N.C. App. ___, ___ 741 S.E.2d 327, 329 (2012) (Beasley, J., dissenting).
Driving over the lane line.  Crossing the line demarcating a lane, even once, does provide reasonable suspicion supporting a traffic stop. In State v. Osterhoudt, ___ N.C. App. ___, 731 S.E.2d 454 (2012), for example, the court held that a trooper’s observation of a defendant driving over a double yellow line when turning right provided a reasonable basis for concluding that the defendant violated G.S. 20-146(d)(1).  Similarly, in State v. Hudson, 206 N.C. App. 482 (2010), the court held that an officer had reasonable suspicion to stop the defendant’s vehicle after seeing his truck twice cross the center and fog lines.
As near as practicable.  As previously noted, G.S. 20-146(d)(1) requires that a vehicle be driven “as nearly as practicable entirely within a single lane.” Violation of this provision constitutes negligence per se in a civil action based on injuries or damages resulting from a vehicle’s failure to stay within its lane. A defendant in a civil action may rebut the inference of negligence in such an action by showing that the violation resulted from causes other than his or her own negligence, such as such as the presence of ice, a person, an animal, or another obstruction in the roadway. While no criminal case in North Carolina analyzes the “as near as practicable” qualifier, it seems reasonable to equate it to the same types of evidence that rebut the presumption of negligence in a civil action.
The Court of Appeals of Idaho in State v. Neal, __ P.3d __ (October 15, 2014), recently construed the meaning of “as nearly as practicable” under its lane law in a similar manner. In rejecting the defendant’s argument that Idaho’s statute permitted all sorts of minor deviations from one’s lane, the court explained:
In our view . . . the term “practicable” is unambiguous. It is defined as “able to be done or put into practice successfully,” NEW OXFORD AMERICAN DICTIONARY 1338 (2001), and as “feasible in the circumstances,” BLACK’S LAW DICTIONARY 1172 (6th ed.1990). These definitions are not consistent with Neal’s contention that “as nearly as practicable” creates a safe harbor permitting a person to occasionally leave his lane, without any apparent need, because doing so falls within the wide spectrum of normal driving behavior. We need not, at this juncture, describe all of the weather conditions, road conditions, behavior of other drivers, or other hazards that might justify a driver in leaving the lane. Here, there is simply nothing in the record to show that Neal left his lane because staying within his lane was not “practicable.”
 Back to the Darlings
Officer Fife has no reasonably objective basis for stopping Brisco Darling as driving on the lane lines is not a violation of G.S. 20-146(d)(1).
Charlene Darling should prepare for the blue lights as Officer Fife’s observations provide reasonable suspicion for a stop.
As for Mitch Darling, reasonable minds could disagree. Officer Fife does not know whether Mitch Darling drove outside of his lane because he skidded on ice. Arguably, Officer Fife could cross the relatively low reasonable suspicion threshold based on his observation of the tires crossing the fog line, without considering whether Mitch could have prevented that from occurring. On the other hand, has anyone seen a North Carolinian drive on ice?  If all Mitch did was briefly leave his lane, he might deserve commendation rather than citation.

Monday, June 8, 2015

Riding in the open bed of a truck

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I was at dinner the other night and I was asked whether or not his child could ride in the back of a pick up truck.  The answer is. "it depends".

Here is the statute.

§ 20-135.2B.  Transporting children under 16 years of age in open bed or open cargo area of a vehicle prohibited; exceptions.
(a)        The operator of a vehicle having an open bed or open cargo area shall ensure that no child under 16 years of age is transported in the bed or cargo area of that vehicle. An open bed or open cargo area is a bed or cargo area without permanent overhead restraining construction.
(b)        Subsection (a) of this section does not apply in any of the following circumstances:
(1)        An adult is present in the bed or cargo area of the vehicle and is supervising the child.
(2)        The child is secured or restrained by a seat belt manufactured in compliance with Federal Motor Vehicle Safety Standard No. 208, installed to support a load strength of not less than 5,000 pounds for each belt, and of a type approved by the Commissioner.
(3)        An emergency situation exists.
(4)        The vehicle is being operated in a parade.
(5)        The vehicle is being operated in an agricultural enterprise, including providing transportation to and from the principal place of the agricultural enterprise.
(6)        Repealed by Session Laws 2008-216, s. 1, effective October 1, 2008.
(c)        Any person violating this section shall have committed an infraction and shall pay a penalty of not more than twenty-five dollars ($25.00), even if more than one child less than 16 years of age is riding in the open bed or open cargo area of a vehicle. A person found responsible for a violation of this section may not be assessed court costs.
(d)       No drivers license points or insurance surcharge shall be assessed on account of violation of this section. A violation of this section shall not constitute negligence per se.  (1993 (Reg. Sess., 1994), c. 672, s. 1; 1995, c. 163, s. 7; 1999-183, s. 4; 2008-216, s. 1.)

Monday, June 1, 2015

Expired Registration

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Great article on changes to registration in NC and dealing with tickets for expired registration.

Gray is in.  And DMV knows it.   
The News and Observer’s Road Worrier, Bruce Siceloff, reports that DMV is dropping its colorful registration renewal stickers in favor of neutral gray ones—and saving more than $70,000 a year as a result.  A single gray sticker featuring both the month and year will replace the separate month and year stickers that now adorn North Carolina plates.
Siceloff’s report got me thinking about those pesky registration violations.  C’mon, you know you’ve had one.  Or someone in your family has.
Expired tags.  Indeed, there were nearly 230,000 charges in 2014 for willfully displaying an expired registration plate on a vehicle. Violation of this provision is a Class 3 misdemeanor.  G.S. 20-111(2).  This is by far the most common type of registration violation and is the second most commonly charged criminal offense in the state (right behind speeding).
But there are several other ways in which people run afoul of the vehicle registration statutes.
Revoked registration. G.S. 20-111(2) also makes it a Class 3 misdemeanor to display or possess a registration card, certificate of title, or registration plate that has been canceled, revoked or suspended.  Such suspensions can result from failure to pay tolls due to the NC Turnpike Authority and failure to pay a fine imposed under G.S. 20-217 for passing a stopped school bus, among other misdeeds. More than 36,000 defendants were charged with this variety of registration offense in 2014.
Fictitious or altered registration. Possessing or displaying a registration card, certificate of title, or registration plate that you know has been altered or that you know is fictitious also is a Class 3 misdemeanor. There were more than 26,000 charges for this offense last year.
No registration. Driving a vehicle on a highway that is not registered or allowing someone else to so drive a vehicle you own also is a Class 3 misdemeanor. G.S. 20-111(1). More than 20,000 defendants were charged with this offense in 2014.  It likewise is unlawful to fail to display a current registration plate when driving a vehicle on a highway or to allow someone else to so drive a vehicle you own. Charges for this offense are far less common than those previously mentioned. There were 3,166 such charges in 2014.
Lending a plate. It is unlawful to give, lend or borrow a license plate for use on a vehicle other than that for which it was issued. G.S. 20-111(3). Both the giver and the recipient are guilty of a Class 3 misdemeanor. When a license plate is found being so improperly used, it must be canceled. There were nearly 4,000 charges for this offense last year.
Keep it clean.  G.S. 20-63(g) generally prohibits the alteration, disguise or concealment of numbers on a registration plate. A person who does any of the following commits a Class 2 misdemeanor:
  • Willfully mutilates, bends, or twists a registration plate
  • Causes a registration plate to be covered or partially covered by a bumper, light, spare tire, tire rack, strap, or other device
  • Paints, enamels, embosses, stamps, prints, perforates, or alters a registration plate or its figures or letters
  • Deposits oil, grease, or another substance on the plate for the purpose of making dust stick to it
  • Defaces, disfigures, changes, or attempts to change a letter or figure on a registration plate
  • Displays a registration plate in other than a horizontal upright position

In 2014, there were 647 charges for having a registration plate improperly attached, and 394 charges for other misdemeanor violations of G.S. 20-63(g).
License plate frames and covers. G.S. 20-63(g) also regulates license plate frames and covers.  A motor vehicle operator who does any of the following commits an infraction:
  • Intentionally covers any number or registration renewal sticker on a registration plate with material that makes the number or registration renewal sticker illegible
  • Covers a registration plate with any frame or transparent, clear, or color-tinted cover that makes a number or letter in the vehicle’s registration, the State name on the plate, or a number or month on the registration renewal sticker illegible
  • Willfully covers or causes to be covered any part of a registration plate by a device designed to prevent or interfere with the taking of clear photograph of the registration plate by a traffic control or toll collection system
Nearly 1,000 defendants were charged with infractions under G.S. 20-63(g) in 2014.
Failure to sign registration card. The next time you get in your car, open your glove box, and pull out your registration. Is it signed? If it isn’t, you’re in violation of G.S. 20-57(c), which requires that the owner of a vehicle sign the registration card with pen and ink. Registration cards must be carried in the vehicle to which they refer at all times and must be displayed upon an officer’s demand. Violation of these provisions is an infraction. Nearly 1,500 defendants were cited last year for failure to sign their registration cards, and more than twice that many for failure to carry them.