Monday, August 24, 2015

Failure to Stop for Stopped School Bus

www.kisslinglaw.com

Every year when school starts, I like to remind everyone about the laws for stopping for a stopped school bus. Failure to do so is a class 1 misdemeanor. No PJC. Five license points, 4 insurance points. Here is more.

N.C. Department of Transportation
Division of Motor Vehicles
School Bus & Traffic Safety Section
1100 New Bern Avenue
Raleigh, NC 27697-0001

phone: (919) 861-3109

fax: (919) 715-3306

www.dmv.dot.state.nc.us

Original brochure designed and produced by the North Carolina Department of Transportation, Division of Motor Vehicles, School Bus & Traffic Safety Section

For a copy of this brochure,
call (919) 861-3109.

North Carolina School Bus Stop Law


STOP...It's the Law (poster & placard)
Download the North Carolina School Bus Stop Law Rack Card Report of violation of School Bus Law (G. S. 20-2 17) or

§ 20-217. Motor vehicles to stop for properly marked and designated school buses in certain instances; evidence of identity of driver.

(a) When a school bus is displaying its mechanical stop signal or flashing red lights and the bus is stopped for the purpose of receiving or discharging passengers, the driver of any other vehicle that approaches the school bus from any direction on the same street, highway, or public vehicular area shall bring that other vehicle to a full stop and shall remain stopped. The driver of the other vehicle shall not proceed to move, pass, or attempt to pass the school bus until after the mechanical stop signal has been withdrawn, the flashing red stoplights have been turned off, and the bus has started to move.

(b) For the purpose of this section, a school bus includes a public school bus transporting children or school personnel, a public school bus transporting senior citizens under G.S. 115C-243, or a privately owned bus transporting children. This section applies only in the event the school bus bears upon the front and rear a plainly visible sign containing the words "school bus."

(c) Notwithstanding subsection (a) of this section, the driver of a vehicle traveling in the opposite direction from the school bus, upon any road, highway or city street that has been divided into two roadways, so constructed as to separate vehicular traffic between the two roadways by an intervening space (including a center lane for left turns if the roadway consists of at least four more lanes) or by a physical barrier, need not stop upon meeting and passing any school bus that has stopped in the roadway across the dividing space or physical barrier.

(d) It shall be unlawful for any school bus driver to stop and receive or discharge passengers or for any principal or superintendent of any school, routing a school bus, to authorize the driver of any school bus to stop and receive or discharge passengers upon any roadway described by subsection (c) of this section where passengers would be required to cross the roadway to reach their destination or to board the bus; provided, that passengers may be discharged or received at points where pedestrians and vehicular traffic are controlled by adequate stop-and-go traffic signals.

(e) Except as provided in subsection (g) of this section, any person violating this section shall be guilty of a Class 1 misdemeanor and shall pay a minimum fine of five hundred dollars ($500.00). A person who violates subsection (a) of this section shall not receive a prayer for judgment continued under any circumstances.

(f) Expired.

(g) Any person who willfully violates subsection (a) of this section and strikes any person shall be guilty of a Class I felony and shall pay a minimum fine of one thousand two hundred fifty dollars ($1,250). Any person who willfully violates subsection (a) of this section and strikes any person, resulting in the death of that person, shall be guilty of a Class H felony and shall pay a minimum fine of two thousand five hundred dollars ($2,500).

(g1) The Division shall revoke, for a period of one year, the drivers license of a person convicted of a second misdemeanor violation under this section within a three-year period. The Division shall revoke, for a period of two years, the drivers license of a person convicted of a Class I felony violation under this section. The Division shall revoke, for a period of three years, the drivers license of a person convicted of a Class H felony violation under this section. The Division shall permanently revoke the drivers license of (i) a person convicted of a second felony violation under this section within any period of time and (ii) a person convicted of a third misdemeanor violation under this section within any period of time.

In the case of a first felony conviction under this section, the licensee may apply to the sentencing court for a limited driving privilege after a period of six months of revocation, provided the person's drivers license has not also been revoked or suspended under any other provision of law. A limited driving privilege issued under this subsection shall be valid for the period of revocation remaining in the same manner and under the terms and conditions prescribed in G.S. 20-16.1(b). If the person's drivers license is revoked or suspended under any other statute, the limited driving privilege issued pursuant to this subsection is invalid.

In the case of a permanent revocation of a person's drivers license for committing a third misdemeanor violation under this section within any period of time, the person may apply for a drivers license after two years. The Division may, with or without a hearing, issue a new drivers license upon satisfactory proof that the former licensee has not been convicted of a moving violation under this Chapter or the laws of another state. The Division may impose any restrictions or conditions on the new drivers license that the Division considers appropriate. Any conditions or restrictions imposed by the Division shall not exceed two years.

In the case of a permanent revocation of a person's drivers license for committing a second Class I felony violation under this section within any period of time, the person may apply for a drivers license after three years. The Division may, with or without a hearing, issue a new drivers license upon satisfactory proof that the former licensee has not been convicted of a moving violation under this Chapter or the laws of another state. The Division may impose any restrictions or conditions on the new drivers license that the Division considers appropriate. Any conditions or restrictions imposed by the Division shall not exceed three years.

Any person whose drivers license is revoked under this section is disqualified pursuant to G.S. 20-17.4 from driving a commercial motor vehicle for the period of time in which the person's drivers license remains revoked under this section.

(g2) Pursuant to G.S. 20-54, failure of a person to pay any fine or costs imposed pursuant to this section shall result in the Division withholding the registration renewal of a motor vehicle registered in that person's name. The clerk of superior court in the county in which the case was disposed shall notify the Division of any person who fails to pay a fine or costs imposed pursuant to this section within 20 days of the date specified in the court's judgment, as required by G.S. 20-24.2(a)(2). The Division shall continue to withhold the registration renewal of a motor vehicle until the clerk of superior court notifies the Division that the person has satisfied the conditions of G.S. 20-24.1(b) applicable to the person's case. The provisions of this subsection shall be in addition to any other actions the Division may take to enforce the payment of any fine imposed pursuant to this section.

(h) Automated camera and video recording systems may be used to detect and prosecute violations of this section. Any photograph or video recorded by a camera or video recording system shall, if consistent with the North Carolina Rules of Evidence, be admissible as evidence in any proceeding alleging a violation of subsection (a) of this section. (1925, c. 265; 1943, c. 767; 1947, c. 527; 1955, c. 1365; 1959, c. 909; 1965, c. 370; 1969, c. 952; 1971, c. 245, s. 1; 1973, c. 1330, s. 35; 1977, 2nd Sess., c. 1280, s. 4; 1979, 2nd Sess., c. 1323; 1983, c. 779, s. 1; 1985, c. 700, s. 1; 1991, c. 290, s. 1; 1993, c. 539, s. 382; 1994, Ex. Sess., c. 24, s. 14(c); 1998-149, s. 10; 2005-204, s. 1; 2006-160, s. 1; 2006-259, s. 11(a); 2007-382, s. 1; 2009-147, ss. 1, 2; 2013-293, s. 2.)

Friday, August 14, 2015

New Law on Probation Revokations

www.kisslinglaw.com

New Law on Probation Violations as it applies to misdemeanors.

Great article by the NC School of Government.

Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants.
Since 2011, the rule for probation violations in North Carolina has been as follows. Revocation is permissible only for violations of the “commit no criminal offense” and “absconding” conditions. All other violations are considered “technical violations,” and the court may not revoke probation for them. Instead, the court may impose a period of “confinement in response to violation” (CRV) of 90 days for a felony or up to 90 days for a misdemeanor, or some other sanction aside from revocation (like a split sentence or electronic house arrest, for example). After a probationer has received two CRV periods, he or she may be revoked for any violation, including a technical violation. G.S. 15A-1344(d2). It’s a sort of “three strikes and you’re out” approach to minor violations.
The thing is, hardly anyone ever gets to the third technical-violation strike. (Actually, not that many people even get to the second one.) Something else usually happens first. Either the person gets revoked for a new criminal offense or absconding, or the probation period expires, or the first CRV is a so-called “terminal CRV”—meaning that it either uses up the defendant’s entire suspended sentence or that the judge affirmatively terminates the probation after the first CRV period is served. Especially for misdemeanants, whose suspended sentences often are not any longer than 90 days to begin with, many if not most first CRVs are terminal.
Realizing that the existing CRV model isn’t really compatible with misdemeanors, the General Assembly decided this session to abandon it—at least for misdemeanors sentenced under Structured Sentencing. Under S.L. 2015-191, signed by the governor last week, CRV is eliminated as a probation response option for Structured Sentencing misdemeanants placed on probation on or after December 1, 2015.
With CRVs eliminated, something else needed to serve as the “strike” that would put a misdemeanant technical violator on the path to revocation. Enter the “quick dip.”
Under the amended law, a judge may impose jail confinement under G.S. 15A-1343(a1)(3)—the “community and intermediate probation condition” colloquially known as a “quick dip” in the jail—in response to a probation violation other than a new crime or absconding. The quick dip, described here, is short-term jail confinement served in two- or three-day increments that may total no more than six days in any month, and that may be used in no more than three separate months of a person’s probation. A probation officer may also impose a quick dip through delegated authority under G.S. 15A-1343.2(e) (community punishment cases) and G.S. 15A-1343.2(f) (intermediate punishment), if the probationer waives his or her right to a hearing on the violation.
Once a probationer has received two periods of quick dip confinement for a technical violation, he or she may, under the revised law, be revoked for any subsequent violation. The second quick dip must have been imposed for a violation that occurred after the defendant served the first dip. With that in mind, the judge or probation officer imposing the first batch of dip confinement probably wouldn’t want to use up the full complement of available dip days, because that would leave no dip time available for imposition of a qualifying second dip after service of the first one. I don’t think that’s likely to be a problem in practice; my sense is that most dip confinement is ordered only two or three days at a time. Remember that a judge may also impose dip confinement at sentencing or in response to a new crime or absconding, but under revised G.S. 15A-1344(d2), those dips won’t qualify as technical violation strikes.
The amended law makes no changes to the existing rule for felony or DWI probationers, or for the tens of thousands of misdemeanor defendants who will already be on probation as of December 1. For them, CRV will remain as a permissible option for technical violations, with revocation allowed for any violation after receipt of two CRVs. As has become the norm, probation officers and court officials will have to take great care to use the proper law (and the proper forms) applicable to the individual probationer. I’ll work on a set of three-dimensional tables that will tell you proper law to apply given a particular offense, offense date, sentencing date, and violation date. Fear not; you’ll all have 3-D printers by the time I finish it.
The new approach is probably a better fit for short misdemeanor sentences than the existing CRV structure, but it may bring us back to square one on some of the interpretive questions we had regarding CRVs. For example:

Can a defendant appeal quick dip confinement, either to superior court for a de novo hearing, or from superior court to the court of appeals?
If a judge orders a quick dip at a violation hearing, may (or must?) the judge credit any pre-hearing confinement toward the dip? Or is the credit prohibited?
What about dips imposed on a person on probation for multiples offenses; they must run concurrently with one another, G.S. 15A-1343(a1)(3), but does the defendant get jail credit against all of the cases if he or she later gets revoked?
Does the rule apply equally to unsupervised cases, where there is no probation officer to impose dips through delegated authority? (I have never read the reference to defendants “under supervision” in G.S. 15A-1344(d2) to limit the rules on revocation eligibility to supervised probationers. G.S. 15A-1344(a) sets out the baseline rule for revocation eligibility, and it is not limited to supervised offenders, and G.S. 15A-1341(b) says that, in general, unsupervised probationers are subject to the same rules as the supervised ones.)

I also wonder whether the increased emphasis on quick dips may give rise to a constitutional challenge (background here). I’m not aware of any pending litigation along those lines—even though probation officers have imposed over 5,000 quick dips statewide since 2011. But that could change once dips mean more. It’s also possible, of course, that probationers will become less likely to consent to an officer-imposed quick dip, knowing that it puts them on the path to revocation. My understanding is that under current law, very few probationers refuse to consent to a probation officer’s quick dip proposal.
Finally, even though the duration of the quick dip makes it a better intervention than CRV in short misdemeanor cases, a defendant is still entitled to a full-blown violation hearing before the court may order one. So we’re still left with a world where it could take three hearings (dip, dip, then revoke) to fully activate a relatively short sentence. With that in mind, I wouldn’t be surprised to see an increase in “terminal splits” or “terminal contempt” ordered in response to defendant’ first technical violations. Court (and counsel) time—not suspended sentence length—may be the true limiting factor.

Monday, August 3, 2015

License Plates

www.kisslinglaw.com

Nice article on the issue of the Confederate License Plate in NC. Thank you to Shea Denning.

Following the shooting deaths of nine black worshippers in June at a historically significant Charleston church and South Carolina’s subsequent removal of the Confederate flag from the grounds of the State House, some have called upon North Carolina officials to stop issuing specialty license plates featuring the Confederate flag. N.C. Governor Pat McCrory has said that the General Assembly must pass legislation to halt issuance of the plates. One veteran legislator was quoted in this News and Observer story as saying that he never would have voted to authorize such a special plate and never recalls seeing such legislation. A spokesperson for another legislator was quoted as saying that the Governor was empowered to end issuance of the plates. Who’s right?
As it turns out, the answer is not obvious.
Where’s the statute? There’s a reason legislators might not remember authorizing license plates featuring the Confederate flag. They never specifically did so. Indeed, G.S. 20-79.4(b) lists 250 types of special registration plates that DMV “shall issue.” None of these plates feature the Confederate flag.
So why were Confederate flag plates ever issued? The General Assembly authorized issuance of license plates identifying civic clubs and displaying the emblem of the identified club in a provision currently codified as G.S. 20-79.4(b)(42). That statutory subdivision specifies that license plates are “[i]ssuable to a member of a nationally recognized civic organization whose member clubs in the State are exempt from State corporate income tax.” It lists, as examples of these types of clubs, Jaycees, Kiwanis, Optimist, Rotary, Ruritan, and Shrine. The statute requires the plate to “bear a word or phrase identifying the civic club and the emblem of the civic club,” and provides that DMV may not issue a civic club plate unless it receives at least 300 applications for that plate.
After receiving tax-exempt status from the North Carolina Department of Revenue, the North Carolina chapter of the Sons of Confederate Veterans (SCV) applied to DMV for issuance of a license plate bearing its emblem: the Confederate flag. DMV refused to issue the plates.
SCV sued in superior court and won. The trial court ordered DMV to issue SCV registration plates once it received the requisite 300 applications. DMV appealed, and a majority of the court of appeals affirmed in North Carolina Division of Sons of Confederate Veterans v. Faulkner, 131 N.C. App. 775 (1998). The appellate court determined that SCV was of a similar character as the qualifying civic clubs listed in the “civic club” subdivision of G.S. 20-79.4(b) and thus was a “nationally recognized civic organization” within the meaning of that statute. Thus, the court determined that SCV qualified for special registration plates. The court noted that “[w]hether the display of the confederate flag on state-issued license plates represents sound public policy is not an issue presented to the Court in this case. That is an issue for our General Assembly.”
Significantly, however, the court did not rule in favor of SCV on constitutional grounds. While it noted that “allowing some organizations which fall within section [G.S. 20-79.4(b)(42)’s] criteria to obtain personalized plates while disallowing others equally within the criteria could implicate the First Amendment’s restriction against content-based restraints on free speech,” the court avoided the need for constitutional analysis when it determined that the statute required issuance of the plates.
Judge (and subsequent Justice) Timmons-Goodson dissented on the basis that SCV did not satisfy the statutory definition of civic club. DMV evidently declined to exercise its right to appeal the divided decision to the state supreme court.
What happened next? DMV followed the court’s directive. The News and Observer reports that more than 2,000 such plates have been issued.
Wasn’t there just a U.S. Supreme Court case involving this very issue? Yes. The United States Supreme Court held last month in a 5-4 decision that the First Amendment did not require the State of Texas to issue license plates featuring the Sons of Confederate Veterans emblem. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). The high court determined that specialized license plates were a form of public speech by the State government rather than private speech by the organizations whose logos were featured on license plates. Thus, the majority concluded that Texas could “choose how to present itself and its constituency.”
Had the North Carolina court of appeals based its decision that DMV was required to issue SCV license plates on a determination that to do otherwise would constitute viewpoint discrimination in violation of the First Amendment, the United States Supreme Court’s determination in Sons of Confederate Veterans would overrule that determination. But the North Carolina Court of Appeals did not rest its holding on that ground. Instead, as noted above, it determined that the statutory provision directing DMV to issue special license plates for civic clubs that met the statutory definition required issuance of the Confederate flag plates.
So who is right? If G.S. 20-79.4(b)(42) afforded DMV discretion in determining which civic organizations were entitled to special plates, there would be no question that the governor could direct DMV, an agency under his control, to stop issuing Confederate flag plates. But the court of appeals in Sons of Confederate Veterans did not construe G.S. 20-79.4(b) as allowing DMV to select which civic groups were eligible for special plates. That’s presumably why the Governor has concluded that he cannot tell DMV to stop issuing the plates unless the General Assembly amends the statute.
On the other hand, considering the history behind the issuance of these plates, it isn’t hard to understand why some legislators disagree.The legislature never approved the confederate plates, DMV issued them only after the state court of appeals said it had to, and the U.S. Supreme Court just held, in a similar case, that Texas was not required to issue Confederate flag plates. Taking a broad view of the matter and discounting the specific reasoning of the state court opinion, one might conclude that the Governor could act on his own to stop DMV from handing out Confederate plates.