Monday, July 27, 2015


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Great article on the changing law of expungments of DWIs in North Carolina from Shea Denning at the NC School of Government.

If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast.  Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws.
No statutory deferred prosecution or conditional discharge for DWI.  G.S. 15A-1341 sets forth a statutory scheme pursuant to which certain defendants may be placed on probation as part of a deferred prosecution agreement or as part of an agreement following a determination of the defendant’s guilt. This first type of agreement and probation commonly is referred to as statutory deferred prosecution” so as to distinguish it from other ad hoc deferred prosecution arrangements that may be entered into by a district attorney and a criminal defendant. The second is commonly called a “conditional discharge.” A defendant’s successful completion of probation leads to dismissal of the charges under either arrangement. See G.S. 15A-1342(i) (granting a defendant immunity from prosecution upon the expiration of probation imposed after deferral of prosecution). Charges are dismissed by the prosecutor if the defendant is placed on probation before entering a plea. See G.S. 15A-1341(a1), (a2). Charges are dismissed by the court and the defendant discharged if the defendant pleads or is found guilty before being placed on probation.  See G.S. 15A-1341(a4), (a5), (a6).
Two groups of defendants are eligible for statutory deferred prosecution and conditional discharge. Jamie described the first type of defendant in this post.  In general, these are defendants charged with a low-level felony or a misdemeanor offense who have not previously been convicted of a felony or a misdemeanor involving moral turpitude.  The second type of defendant is one who is eligible for a drug treatment court program established pursuant to the North Carolina Drug Treatment Court Act.
Some defendants charged with DWI under G.S. 20-138.1 qualify under either category. DWI is a misdemeanor offense and the legislature has identified reducing alcohol dependence crimes such as DWI as a central purpose of drug treatment courts.
However, S.L. 2015-150 amends G.S. 15A-1341 to provide that defendants charged with or convicted of misdemeanor DWI are not eligible for statutory deferred prosecution or conditional discharge. The amendments are effective for orders placing a defendant on probation on or after December 1, 2015.
Re-sentencing not always required on remand. The legislature enacted G.S. 20-38.7 in 2006 to prevent a defendant from escaping enhanced punishment in a DWI case by appealing a prior DWI conviction to  superior court and then withdrawing the appeal after he was sentenced for a subsequent DWI. When that occurred, a defendant benefited from two low-level DWI sentences, neither of which was enhanced by the prior conviction. Current G.S. 20-38.7 provides that district court sentences for DWI are vacated upon the giving of notice of appeal and requires a district court to hold a new sentencing hearing and consider new convictions when a DWI appeal to superior court is withdrawn or a case is remanded from superior to district court. But because DWIs aren’t always appealed to superior court solely for the purpose of dodging sentencing enhancements for prior convictions, G.S. 20-38.7 requires resentencing in some circumstances where the parties agree there are no new sentencing factors for the court to consider.  S.L. 2015-150 amends G.S. 20-38.7(c) to provide that a district court sentence is not vacated and no new sentencing hearing is required if the appeal is properly withdrawn and the case remanded and the prosecutor has certified to the clerk in writing that she has no new sentencing factors to offer the court.  These amendments are effective for appeals filed on or after December 1, 2015.
Stay tuned as the session wraps up for posts on other significant DWI and motor vehicle legislation.

Tuesday, July 7, 2015

Moped Registration

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North Carolina is now requiring mopeds to be registered.  Mopeds have been a way of transportation for individuals who have not been able to get a license or if their license is suspended.

Below is an article by Shea Denning of the North Carolina School of Government on the issue.

Beginning tomorrow, mopeds must be registered with the Division of Motor Vehicles to be lawfully operated on the state’s roadways. This post addresses several questions that have arisen regarding this new requirement. 
What’s a moped?  A moped is “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 20-4.01(21a) (incorporating definition in G.S. 105-164.3). Motorized vehicles that otherwise matched this description but had larger engines or were capable of traveling faster than 30 miles per hour on a level surface already were required to be registered. See G.S. 20-50(a).
The new registration requirement.  S.L. 2014-114 enacted G.S. 20-53.4, effective July 1, 2015, which requires that mopeds be registered before being driven on streets or highways in the state. To be registered, the moped must have a manufacturer’s certificate of origin and must be designed and manufactured for use on highways or public vehicular areas.
The fee for registering a moped is the same as that for registering a motorcycle–$18.00. See G.S. 20-87(6). Additional fees apply to residents of Durham, Orange, Randolph, and Wake Counties.
Is insurance required? Not yet, but it likely will be beginning July 1, 2016. The General Assembly ratified H 148 last week, and the bill awaits the governor’s signature. The bill amends G.S. 20-309(a) to require that owners of mopeds provide proof of financial responsibility before a moped may be registered and that they maintain such a policy throughout the registration period.
Is failing to register a moped a crime? Yes. Driving an unregistered moped on a street or highway or allowing a moped you own to be so driven is a Class 3 misdemeanor. See G.S. 20-111(1). The same is true for failing to display a current registration plate on a moped. Id.
Given the newness of the requirement, DMV Commissioner Kelly Thomas has asked law enforcement officers to consider issuing warning tickets rather than citations during the first thirty days the law is in effect.
Are more changes coming? Perhaps. The act that required registration of mopeds directed the Joint Legislative Transportation Oversight Committee to study whether additional statutory changes are needed to ensure the safe operation of mopeds. The North Carolina Department of Transportation recommended to the committee earlier this year that driver’s licenses be required for the operation of a moped and that mopeds be prohibited from roadways with speed limits of 45 miles per hour or greater.