Wednesday, October 28, 2015

DWI Aggravating Factors

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Aggravating Factors for DWI are as follows:


Aggravating Factors to Be Weighed. - The judge, or the jury in superior court, shall determine before sentencing under subsection (f) whether any of the aggravating factors listed below apply to the defendant. The judge shall weigh the seriousness of each aggravating factor in the light of the particular circumstances of the case. The factors are:
(1)        Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2)        Especially reckless or dangerous driving.
(3)        Negligent driving that led to a reportable accident.
(4)        Driving by the defendant while his driver's license was revoked.
(5)        Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6)        Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7)        Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8)        Passing a stopped school bus in violation of G.S. 20-217.
(9)        Any other factor that aggravates the seriousness of the offense.
Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).
(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).
(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).
It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level shall be imposed.

Wednesday, October 21, 2015

DWI Mitigating Factors

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The question often arises, what are mitigating factors for DWI sentencing.  Below is a list from NCGS 20-179(e) of all the mitigating factors.

(e)        Mitigating Factors to Be Weighed. - The judge shall also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge shall weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:
(1)        Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2)        Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3)        Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.
(4)        A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(5)        Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
(6)        The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(6a)      Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.
(7)        Any other factor that mitigates the seriousness of the offense.
Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.

  Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).
(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).
(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

Thursday, October 15, 2015

New laws on Sexual Offenses

Explanation of new laws by the NC School of Government.

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In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law:
This case illustrates a significant ongoing problem with the sexual offense statutes of this State: the various sexual offenses are often confused with one another, leading to defective indictments.
Given the frequency with which these errors arise, we strongly urge the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another. Currently, there is no uniformity in how the various offenses are referenced, and efforts to distinguish the offenses only lead to more confusion.… We do not foresee an end to this confusion until the General Assembly amends the statutory scheme for sexual offenses. (citations omitted).
Responding to the court’s plea, the General Assembly took action. In S.L. 2015-181 it created a new Article 7B in Chapter 14 entitled “Rape and Other Sex Offenses” and recodified many of state’s sexual assault crimes. Separately, S.L. 2015-62 tweaked the elements of statutory rape and sex offense of a person under fifteen and S.L. 2015-44 increased the punishment for two sexual activity with student offenses and amended the definition of the term “school personnel.” All of the changes become effective December 1, 2015, and apply to offenses committed on or after that date. S.L. 2015-181 sec. 48; S.L. 2015-62 sec 1(d); S.L. 2015-44 sec. 5. The table below summarizes these changes and, come December 1st hopefully will direct those involved with charging these crimes to the correct statute. Already anticipating mistakes in that regard? As I discuss in this bulletin an error in the statutory citation is not a fatal defect when the charging document otherwise properly alleges the crime committed (see my Criminal Case Compendium for more recent cases on point). As also noted in my bulletin, the statutory citation may be amended when the body of the charging instrument puts the defendant on notice of the crime charged. In any event, it’s always easier to do it right the first time. To that end here is your cheat sheet:
Offense Old statute New statute Substantive changes
First-degree forcible rape G.S. 14-27.2 G.S. 14-27.21 None
Second-degree forcible rape G.S. 14-27.3 G.S. 14-27.22 None
Statutory rape by an adult G.S. 14-27.2A G.S. 14-27.23 None
First-degree statutory rape G.S. 14-27.2 G.S. 14-27.24 None
Statutory rape of a person who is 15 or younger G.S. 14-27.7A G.S. 14-27.25 1. Adds requirement that defendant be at least 12 years old
2. Statute now applies whenever victim is 15 years old or younger (used to apply to victim who was 13, 14, or 15 years old)
3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
First-degree forcible sexual offense G.S. 14-27.4 G.S. 14-27.26 None
Second-degree forcible sexual offense G.S. 14-27.5 G.S. 14-27.27 None
Statutory sex offense by an adult G.S. 14-27.4A G.S. 14-27.28 None
First-degree statutory sexual offense G.S. 14-27.4 G.S. 14-27.29 None
Statutory sex offense of a person who is 15 or younger G.S. 14-27.7A G.S. 14-27.30 1. Adds requirement that defendant be at least 12 years old
2. Statute now applies whenever victim is 15 years old or younger (statute used to apply to victim who was 13, 14, or 15 years old)
3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
Sexual activity by a substitute parent G.S. 14-27.7(a) G.S. 14-27.31(a) None
Sexual activity by a custodian G.S. 14-27.7(a) G.S. 14-27.31(b) None
Sexual activity with a student G.S. 14-27.7(b) G.S. 14-27.32 1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school.
2. Sexual activity with a student by person <4 years older than the student raised from Class A1 misd. to Class I felony.
Indecent Liberties with a student G.S. 14-202.4 No change 1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school.
2. Indecent liberties with a student by person <4 years older than the student raised from Class A1 misd. to class I felony.
Sexual battery G.S. 14-27.5A G.S. 14-27.33 None

Thursday, October 8, 2015

New law on Possession of Marijuana

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Law may now require officers to arrest rather than merely cite for possession of less and 1/2 ounce of marijuana.  Below is a great article by the NC School of Law.
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.
Before this session. Until this legislative session, G.S. 15A-502(a) generally permitted criminal defendants to be fingerprinted only if (a) they were arrested, rather than cited or summoned to court, (b) they were “[c]omitted to imprisonment upon conviction,” or (c) they were convicted of a felony. Meanwhile, G.S. 15A-502(a1) generally required “the arresting law enforcement agency” to fingerprint “a person charged with the commission of a felony.”
The combined effect of these two provisions was that all felony defendants were arrested, not summoned. (Citations can’t be used to charge felonies because G.S. 15A-302 limits their use to misdemeanors and infractions.) Although by statute summonses may be used for any “crime or infraction,” and although the official commentary to the statute says that they are appropriate for use with felonies, see G.S. 15A-303 & official commentary, many people reasoned (1) that all felony defendants must be fingerprinted, and (2) they may be fingerprinted only if arrested, so (3) they must be arrested rather than summoned. Thus, the AOC summons form, AOC-CR-113, is captioned “Misdemeanor Criminal Summons,” suggesting that felonies should not be charged by summons. Not everyone agrees with this reasoning, but my impression is that it is the prevailing view.
By contrast, fingerprinting was not mandated for misdemeanor defendants, so they could be charged by summons – or by citation – if circumstances made that more appropriate than an arrest.
2015 gun bill requires fingerprinting for certain misdemeanor defendants. This session, the General Assembly passed S.L. 2015-195, a bill focused on amending the firearms laws. It altered G.S. 15A-502 to make it “the duty of the arresting law enforcement agency to cause a person charged with the commission of [specified] misdemeanors to be fingerprinted, for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS), and to forward those fingerprints to the State Bureau of Investigation.” (S.L. 2015-267 removed from the statute the phrase “for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS),” but it left the directive of the statute unchanged. Both laws are already in effect.)
Relatively few misdemeanors are covered by the new law, including driving while impaired and certain domestic-violence-related offenses. It appears that the misdemeanors were selected because they relate in some way to conditions that would prevent a person from lawfully owning a gun. For example, individuals who are subject to a DVPO or who have been convicted of a domestic violence misdemeanor are prohibited from possessing a firearm under federal law. See generally 18 U.S.C. § 922(g). And, as Shea discussed here, in some instances a DWI conviction may result in a person being ineligible to possess a firearm.
Misdemeanor drug possession included in new law. Most of the covered misdemeanors normally resulted in arrests anyhow, so fingerprinting was at least a possibility. But there’s one very significant exception: the law applies to misdemeanor possession of a controlled substance under G.S. 90-95(a)(3). I speculate that this was included in the bill because 18 U.S.C. § 922(g)(3) makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm.
A misdemeanor possession charge normally involves possessing 1.5 ounces of marijuana or less, most often half an ounce or less. Many officers prefer to issue citations for these offenses rather than making arrests. These offenses are incredibly common, with over 35,000 charges last year for possession half an ounce of marijuana or less and over 2,000 for possession of more than half an ounce but not more than 1.5 ounces.
Does the new law require arrests? A number of officers and others have asked about the meaning of the new provision. The wording of the provision is very similar to the wording of the felony fingerprinting provision, which has generally been read to require arrests and to preclude summonses for felony defendants. If the new provision is read the same way, officers would need to arrest and fingerprint rather than cite or summon every person to be charged with misdemeanor possession of a controlled substance. That means more work for officers, more work for magistrates, more work for clerks, and arrest records for more defendants. Or else it means more officers forgoing charges to avoid the burdens associated with an arrest. Of course, if that’s the law, it’s the law, and perhaps there are benefits to including more misdemeanants’ fingerprints in the system. At least one of my colleagues supports this reading.
That’s not the only possible reading of the provision, however. One could read it so say that if a person charged with a misdemeanor drug possession offense is arrested, he or she must be fingerprinted, but not to require an arrest. In support of this view, one could argue that the legislature knows how to enact clear mandatory arrest provisions, see G.S. 50B-4.1(b) (officers “shall arrest” when they develop probable cause to believe a person has violated a DVPO), yet it didn’t do so here. My impression is that many law enforcement agencies are adopting this interpretation, and it’s hard to see how such an interpretation would come before a court for review. Does that open the door to reconsidering the practice regarding felonies? At least one of my colleagues thinks that it should.
I have also heard the suggestion that an officer may still cite or seek a summons for a person charged with a misdemeanor drug possession offense, but that the officer must fingerprint the person anyhow. I don’t think that interpretation works, as it would render the reference to the “arresting law enforcement agency” meaningless. Also, as a practical matter, roadside fingerprinting would be a nightmare.
This strikes me as a situation in which a bill may have unintended consequences that are greater than its intended consequences. But then again, perhaps the General Assembly intended all of the bill’s consequences – with little legislative history available, it is hard to know. As always, readers’ insights and perspectives are welcome.

Wednesday, October 7, 2015

New Driving While License Revoked Law

On December 1, 2015, the law changes on Driving While License Revoked.  The purpose of this new law is to eliminate the snowball affect of driving while license revoked when the revocation is not due to impaired driving.

Below is a great article from Shea Denning at the North Carolina School of Government.

The General Assembly ratified the North Carolina Drivers License Restoration Act last week and submitted it to the Governor. If the act becomes law, it will relieve defendants convicted of certain types of driving while license revoked of the mandatory additional license revocation that has historically followed such convictions. Proponents for a change in the law argued that people convicted of driving while license revoked under current law drove during the revocation period out of necessity and then became locked in an unending cycle of license revocation.

The cycle developed this way:  A person was convicted of an offense requiring revocation of the person’s license.  You can find a chart of such convictions here. The person drove during the initial revocation period, sometimes because he or she had no other way to travel to and from work. The person was stopped by a law enforcement officer and charged with driving while revoked. Upon conviction, the person’s license was automatically revoked for an additional year. During that additional year, the person again was convicted of driving while license revoked. This time, the additional revocation period was two years.  The person’s third conviction for driving while license revoked led to a permanent license revocation.
H 529 ends that cycle for some defendants, effective for convictions on or after December 1, 2015.
Recodification. The legislation assigns each of the two types of driving while license revoked currently codified in G.S. 20-28(a) to its own subsection.  Driving while license revoked for impaired driving, a Class 1 misdemeanor, is codified in amended G.S. 20-28(a1).  Driving while license revoked generally, a Class 3 misdemeanor, remains in G.S. 20-28(a).
The punishment for driving without reclaiming a license is moved to G.S. 20-28(a2), and the offense of driving after notification or failure to appear is codified in new subsection (a3).
The chart below sets forth the various subsections as recodified by H 529.
G.S. 20-28(a) Driving While License Revoked Class 3 misdemeanor
G.S. 20-28(a1) Driving While License Revoked for Impaired Driving Class 1 misdemeanor
G.S. 20-28(a2) Punishment for Driving Without Reclaiming License Class 3 misdemeanor
G.S. 20-28(a3) Driving After Notification or Failure to Appear Class 1 misdemeanor

If H 529 becomes law, a person convicted of driving while license revoked under G.S. 20-28(a) on or after December 1, 2015 will no longer be subject to a mandatory additional period of license revocation. Persons convicted of violating G.S. 20-28(a1) or (a3) still will be subject to the automatic revocation periods described at the outset of this post.  Persons punished for driving without reclaiming a license are not subject to an automatic additional revocation period under current law or H 529.
A person’s license also is subject to automatic revocation under current G.S. 20-28.1 if the person is convicted of a motor vehicle moving offense that was committed while the person’s license was revoked.  H 529 amends G.S. 20-28.1(a) to provide that a violation of G.S. 20-7(a) (no operator’s license), 20-24.1 (failure to appear or pay for motor vehicle offense), or G.S. 20-28(a) or (a2) shall not be considered a motor vehicle moving offense unless the offense occurred in a commercial motor vehicle or the person held a commercial driver’s license at the time of the offense.
Ignition interlock amendment. Not all of the provisions of H 529 afford relief to defendants, however. The act amends G.S. 20-17.8(f) to specify that a person subject to an ignition interlock restriction who violates the restriction commits the offense of driving while license revoked for impaired driving under G.S. 20-28(a1) and is subject to punishment and license revocation as provided in that section. This is a change from what current law provides.
The act also amends G.S. 20-179.3(j) to provide that the holder of a limited driving privilege who violates any of its restrictions commits the offense of driving while license revoked for impaired driving under G.S. 20-28(a1) and is subject to punishment and license revocation as provided in that section.  This is a technical change that accounts for the recodification but does not change treatment of limited driving privilege violations under current law.
DWI sentencing change. Finally, the act makes a corresponding change to the grossly aggravating factor in G.S. 20-179(c)(2) that elevates the punishment for DWI when a person is driving at the time of the offense with a license that is revoked for impaired driving.  Amended G.S. 20-179(c)(2) lists as a grossly aggravating factor “[d]riving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20-28(a1), and the revocation was an impaired driving revocation under G.S. 20-28.2(a).” The last clause is confusing. Is it surplusage since G.S. 20-28(a1) only applies to persons whose licenses are revoked for an impaired driving revocation or for an ignition interlock violation?  Or does it operate to exclude ignition interlock violations from the grossly aggravating factor since they are not listed as impaired driving revocation under G.S. 20-28.2(a)? Perhaps a technical corrections bill later in the session will clear this up.