Monday, August 29, 2016

Does Lower Speed Limit Save Gas or Lives?

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Most tractor-trailers and big buses on U.S. highways ride on tires that weren’t designed to handle speeds above 75 miles per hour. Pat Sullivan AP

Read more here:

Thursday, August 18, 2016

Cause of High Speed Accidents

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Today I was speaking with another attorney who was trying to convince me that speeding is not an issue, it is bad driving.  The following article from Shea Denning takes a different view.

t is almost time for a new school year to begin, so I’m feeling in the mood for a pop quiz.
What driver behavior is associated with the most vehicle crashes in North Carolina?
  1. Speeding
  2. Driver Distraction
  3. Alcohol Consumption

What driver behavior is associated with the most injuries resulting from vehicle crashes in North Carolina?
  1. Speeding
  2. Driver Distraction
  3. Alcohol Consumption

What driver behavior is associated with the most vehicle crash fatalities in North Carolina?
  1. Speeding
  2. Driver Distraction
  3. Alcohol Consumption

The answer to all three questions is 1. Speeding.
The NC DOT publishes traffic crash facts for the state every year. The latest report, based on 2014 data, is available here.
And the dangers associated with speeding couldn’t be more clear.
More than 33 percent of the more than 200,000 crashes in 2014 were related to vehicle speed.  Nearly 34 percent of the 1,181 fatal crashes were related to vehicle speed as were 37 percent of the more than 70,000 injury crashes.
By way of comparison, alcohol was involved in 5 percent of all crashes, 29 percent of fatal crashes, and 7 percent of injury crashes. Driver distraction was involved in 22 percent of all crashes, 12 percent of fatal crashes, and 24 percent of injury crashes. (NC DOT cautions that the driver distraction numbers may not reflect the severity of the issue since driver distraction is a “self-reporting contributing circumstance.”)
The data related to crashes involving teenagers (regardless of the age of the driver) paints an even starker picture of the risks of speeding. Speed is a factor in 31 percent of crashes involving teenagers and 65 percent of teen fatalities. Alcohol, in contrast, is involved in 3 percent of such crashes and 20 percent of fatalities.
National figures on vehicle fatalities for the same time period are similar, though a higher percentage of traffic fatalities nationally (36 percent) resulted from crashes involving alcohol-impaired drivers than speeding (28 percent).
Policy makers understandably spend a lot of time thinking about ways to reduce impaired driving and driver distraction. Should speeding (an offense classified as an infraction or as a Class 3 misdemeanor if the person is driving more than 15 miles per hour over the limit or more than 80 miles per hour) receive similar attention?

Tuesday, August 9, 2016

Search of Vehicle based soley on ordor of marijuana

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Two states are looking at this issue very differently.  Thanks to NCSOG and Capital Media Services for their articles.

The existence of probable cause to search a vehicle and probable cause to search a vehicle occupant based on an odor of marijuana emanating from a vehicle present separate legal issues. The North Carolina Court of Appeals on August 2, 2016, ruled in State v. Pigford that although an officer had probable cause to search a vehicle, he did not have probable cause to search a vehicle occupant based on the marijuana odor. However, another theory mentioned by the court may ultimately support the admission of the illegally-seized evidence at the retrial of the case.
Facts and trial court ruling. The defendant was driving a vehicle with one front seat passenger and was stopped at a motor vehicle checkpoint. The stopping officer detected the odor of marijuana emanating from the vehicle’s front driver-side window, but he was unable to establish the odor’s exact location. The officer ordered the defendant out of the vehicle and searched him, finding cocaine and a straw located in the defendant’s back pocket. The officer arrested the defendant, placed him in a patrol car, and a search of the vehicle discovered a bag of marijuana under the driver’s seat and a stolen handgun on the back passenger seat. The trial court denied the defendant’s motion to suppress, concluding that the odor of marijuana established probable cause to search the defendant. The defendant was convicted of possession of cocaine and possession of a firearm by a felon.
Court of Appeals ruling. The court first noted that it was not contested that the officer had probable cause to search the defendant’s vehicle, including possessions within it. United States v. Di Re, 332 U.S. 581 (1948), Wyoming v. Houghton, 526 U.S. 295 (1999). [For a list of cases that have ruled the odor of marijuana emanating from a vehicle authorizes a warrantless search of the vehicle, see Arrest, Search, and Investigation in North Carolina, p. 182, n. 56 (4th ed. 2011).]
The court stated, however, that under State v. Malunda, 230 N.C. App. 355 (2013), probable cause to search the vehicle and its possessions based on the generalized odor of marijuana emanating from a vehicle does not include a search of the passengers, absent additional facts linking marijuana to a particular passenger. In Malunda, officers during a lawful traffic stop ordered the defendant-passenger out of the car and detained him on the curb. They went back to the driver side of the vehicle and noticed a strong odor of marijuana that they had not smelled on the passenger side. They removed the driver and searched the vehicle, and they found marijuana in the driver-side door. Officers then searched the defendant-passenger and found crack cocaine on him. The Malunda court ruled that the odor of marijuana provided probable cause to search the vehicle, but not the defendant-passenger. And because there was nothing linking the marijuana to the defendant-passenger beside his presence in the vehicle, the search of his person was not supported by probable cause particularized to him.
The court distinguished the ruling in State v. Yates, 162 N.C. App. 118 (2004), in which the odor of marijuana on the defendant supported probable cause to search his person. There the defendant walked by an officer twice, each time emanating a strong odor of marijuana. The court in Pigford noted that, unlike in Yates, the State did not offer any evidence that the marijuana odor was attributable to the defendant. The officer testified that when he stood next to the driver-side window, he smelled marijuana “inside the car,” though his description of the source of the odor was no more precise. He could not recall whether the other vehicle windows were rolled down, nor did he approach the passenger-side window where the odor could have been just as potent. He did not testify whether he smelled marijuana on the defendant after ordering him out of the car. The court stated that to the extent the odor could have been attributed to the defendant, it could have been equally attributable to the front-seat passenger or somewhere else inside the vehicle. Thus the court concluded that although the officer may have had probable cause to search the vehicle, he did not have probable cause to search the defendant.
Despite the defendant’s winning argument on the search issue and being awarded a new trial, it was not a compete win. The court of appeals on its own raised the issue whether the inevitable discovery exception to the Fourth Amendment’s exclusionary rule applied to make the illegally-seized evidence admissible at the new trial. The inevitable discovery rule, set out in Nix v. Williams, 467 U.S. 431 (1984), provides that unlawfully-obtained evidence may nevertheless be admitted at trial if the government proves by a preponderance of the evidence that the evidence ultimately would have been discovered through lawful means. In this case, because the officer had probable cause to search the vehicle, which contained marijuana and a stolen gun, the issue is whether the state can prove that the cocaine on the defendant’s person would have been inevitably discovered through a search of the defendant incident to his arrest for possessing marijuana.
Comments. It is always easy to say in hindsight what could have been done to seize the evidence legally in Pigford. Because the officer had probable cause to search the vehicle based on the odor of marijuana, if that had been done initially instead of searching the defendant, then the officer would have discovered the bag of marijuana under the driver’s seat. And then the officer would have had probable cause to arrest the defendant-driver and search him incident to arrest, resulting in the lawful discovery of the cocaine in the defendant’s back pocket.
So if there is a generalized odor of marijuana from the vehicle and no other incriminating facts (e.g., incriminating evidence in the vehicle or incriminating statements or behavior by a vehicle occupant) to point to an occupant’s connection to the marijuana, then it is unlikely that a court will find probable cause to uphold a search of that occupant. Under these circumstances, an officer may detain the occupant(s), conduct a frisk if justified, and search the vehicle for marijuana. Depending what, if anything, is found will guide the officer concerning what additional actions are justified.

PHOENIX -- Got marijuana? Not legally? Might want to keep the smell down.

A pair of new court rulings Monday allows the police to pursue a search of your place or your vehicle solely based on the odor.

Attorneys for both men who were convicted based on such searches argued that the 2010 voter-approved law which allows some people with certain medical conditions to legally possess or use marijuana means that the smell alone is no longer evidence that a crime is occurring. The fact that neither of them was a medical marijuana cardholder, the lawyers said, is irrelevant.

But Chief Justice Scott Bales, writing for the unanimous court, said that 2010 law did not legalize the drug for the vast majority of Arizonans.

"The odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present,' he wrote.

And Bales specifically rejected the contention that the law -- and the fact some people can possess and use the drug -- means that the smell alone cannot trigger a search.

"Under that view, no person in Arizona would be subject to search or seizure by state or local police officers based only on an officer seeing or smelling marijuana,' the chief justice said. He said the 2010 law "does not broadly alter the legal status of marijuana but instead specifies particular rights, immunities, and obligations for qualifying patients and others, such as designated caregivers.'

And the court specifically rejected arguments that a search based merely on smell runs afoul of state and federal constitutional provisions protecting the right to privacy.

"The right to privacy ... is not a guarantee against (ITALICS) all (ROMAN) government searches and seizures, only unreasonable ones,' Bales explained.

That, in turn, gets back to the fact that marijuana use remains illegal for most of the public, at least for the time being.

The most recent figures from the Arizona Department of Health Services show there are close to 98,000 people who are legally qualified to use the drug. ON top of that there are 853 people certified as "caregivers' plus another 2,625 dispensary agents.

By contrast, the state's population exceeds 6.7 million.

"In this respect, registered qualifying patients are not denied Fourth Amendment rights or privileges based on their medical marijuana use,' Bales wrote. "They are simply treated like the broader public.'

He stressed, though, that police, in deciding whether there is enough evidence for a search, "cannot ignore indicia of AMMA-compliant marijuana possession and use that could dispel probable cause.'

But David Euchner, a deputy Pima County public defender, said that is hardly enough to protect individual rights.

"How would you feel if you were the guy using legally and the police broke into your house and kicked down the door and only later found out that you had a (medical marijuana) card?' he asked. "Now, according to this decision, they basically are allowed to search first, ask questions later.'

Euchner also said the ruling would appear to allow searches based solely on smell -- especially of vehicles where a warrant is unnecessary -- even if voters approve a ballot measure in November to allow Arizonans to possess and use marijuana for recreational purposes.

He noted the initiative only legalizes possession of up to one ounce of the drug by individuals.

"Can the officer search first and determine whether he had the right amount?' Euchner asked.

"We've have situations where the officers know that the person is a (medical marijuana) patient and still say, 'I'm going to search you just to see if you have the right amount,' ' he said.

What's legal right now under the 2010 law is that those with certain medical conditions can obtain up to 2 1/2 ounces of marijuana every two weeks. Those who qualify are issued special cards by the health department.

"Presentation of a valid AMMA registry identification card, therefore, could indicate that marijuana is being lawfully possessed or used,' Bales explained.

"Such information could effectively dispel the probable cause (for a search) resulting from the officer's detection of marijuana by sight or smell, unless of course other facts suggest the use or possession is not pursuant to AMMA,' he continued. "The ultimate inquiry, as in other probable cause determinations, turns on a practical, common-sense consideration of the totality of the circumstances.'

And there's something else.

Bales said the 2010 law does not provide patients with greater protections from searches or increased expectations of privacy than those enjoyed by the public at large. What it does, he said, is protect a legitimate cardholder from arrest, prosecution or any other penalty for their medical use of marijuana.

Monday's ruling most immediately affects two individuals.

One is Ronald J. Sisco II who was represented by Euchner.

His arrest stems from police saying they smelled the "overpowering odor of fresh marijuana' at a storage warehouse on West 35th Street in South Tucson. Based on that, they obtained a search warrant and, according to court records, found discovered 357 plans and 53 pounds of cultivated marijuana. Sisco, who apparently was living in the unit, was convicted of multiple charges and sentenced to concurrent prison terms, the longest of which was 3.5 years.

Monday's ruling affirms the decision of the trial judge to allow the marijuana police found into evidence.

The second case involves Ian Cheatham whose vehicle was stopped by police on the suspicion that the window tinting violated Arizona law.

Officers said they noticed a "pretty strong' odor of burnt marijuana. They then searched the vehicle and found what was described as a marble-sized piece of unburnt drug under the driver's seat.

Thursday, August 4, 2016

New Moped rules

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New laws on Mopeds in North Carolina.  Thank you to NC SOG for their blog post.

Laws governing the operation of mopeds have changed significantly in recent years. Mopeds now must be registered before they may be driven on state roadways, and the owner of the moped must have insurance.  An overview of the current legal requirements for moped operation is set forth below. 
First, what’s a moped?  For years, the term “moped,” has not been separately defined in the motor vehicle statutes. Instead, the term is defined in the State’s tax statutes as “[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. 105-164.3. Effective December 1, 2016, however, Chapter 20 will have its own definition, which will be incorporated into the tax statutes by cross reference.
New G.S. 20-4.01(27)d1 defines a moped as “[a] vehicle, other than a motor-driven bicycle or electric assisted bicycle, that has two or three wheels, no external shifting device, 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. The motor may be powered by electricity, alternative fuel, motor fuel, or a combination of each.” S.L. 2016-90 (H 959), section 13.(a).
The registration requirement.  G.S. 20-53.4, effective July 1, 2015, requires that mopeds be registered before being driven on the streets or highways of 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 for registering a motorcycle: $24.  G.S. 20-87(6).
Driving an unregistered moped on a street or allowing a moped you own to be so driven is a Class 2 misdemeanor. G.S. 20-111(1). The same is true for failing to display a current registration plate on a moped. Id.
The insurance requirement.  G.S. 20-309(a) requires, as of July 1, 2016, 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. Legislation was proposed in 2016 to delay this effective date, but was not enacted. S 821, section 46.(a).
Moped drivers must be at least 16 years old. G.S. 20-10.1 makes it unlawful for a person under the age of 16 to operate a moped upon a street or public vehicular area. Violation of this provision is a Class 2 misdemeanor. G.S. 20-35.
Moped drivers are not required to have a driver’s license. While the North Carolina Department of Transportation has recommended that driver’s licenses be required for the operation of mopeds, the General Assembly has not acted on that recommendation.

Thursday, July 21, 2016

Red Light Tickets

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Interesting article on the results of a lawsuit against a city using cameras to stop speeders.  In NC we only use them for red lights but it may raise the same issues.

Drivers who won a $1.8 million class-action suit against a small Ohio town over its use of red light cameras want to collect their damages -- straight from the pockets of a new crop of motorists caught by the unpopular and all-seeing digital eyes.
Lawyers for thousands of drivers cited in New Miami filed a class-action lawsuit in 2013 against the Butler County town of 2,000 for using an automated speed camera system that they said violated due process rights.The plaintiffs won their case and a subsequent appeal by the town, which now hopes to put the case before the Ohio Supreme Court.
In the meantime, plaintiffs -- and their lawyers -- want their money. And in a case of extreme irony, they want to collect it by garnishing fines generated by New Miami's new red light camera vendor, Blue Line Solutions.
"We want to make sure that any money that New Miami received from their new speed camera program goes to pay back the plaintiffs that had to pay under the old speed camera system," attorney Michael Allen told on Wednesday.
Allen, along with the other four attorneys involved in the suit, argue that the new stream of ticket revenue is the cash-strapped town's "only remaining substantial asset."
Last week, Butler County Common Pleas Court Judge Michael Oster denied the motion to garnish New Miami's current red light camera revenue -- at least until the final appeal is exhausted.
"This case is currently pending review before the Supreme Court of Ohio," Oster wrote on Thursday, adding that garnishment [is] an extraordinary remedy under these circumstances, which should not be considered lightly."
Allen said the attempt was rejected for "legal, technical reasons."
"We're waiting for the Supreme Court to say, 'No, village of Miami. Get your wallets out and start paying these people,'" he said.

Friday, July 1, 2016

New North Carolina Motor Vehicle Laws

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New Motor Vehicle laws going into affect today in North Carolina.  Most of these will not affect the majority of drivers in North Carolina but it is good to know the new laws.

Beginning Friday, July 1, five new motor vehicle provisions will become North Carolina law. The new provisions, passed by the N.C. General Assembly, affect either vehicles or drivers in the state. They include:
  • House Bill 148 requires registered mopeds to carry liability insurance. About 28,000 registered North Carolina moped owners are required to begin carrying liability insurance beginning July 1. Moped owners must provide the North Carolina Division of Motor Vehicles proof of liability insurance coverage from their insurance carrier. Once the insurance information is received, the Division will issue an updated registration card reflecting coverage. Owners can provide the information to their local license plate agency or their insurance company can submit it to DMV. Failure to provide proof of insurance to NCDMV will result in their license plate being revoked. The owners have received two letters from NCDMV since April alerting them about the new requirement.
  • House Bill 97 directs North Carolina vehicle owners to pay a late fee if their vehicle registration renewal is not paid by the expiration date. This new fee was passed by the General Assembly last September and requires one of three graduated late fees to be assessed on late renewals starting July 1. The late fees will be added beginning the first day of the month following the expiration date and total $15 if the registration has been expired for less than one month, and $20  if the registration has been expired for one month or greater, but less than two months. If the registration has been expired for two months or more, the late fee will be $25. The new fees apply to private passenger vehicles and to apportioned truck fleets registered under the International Registration Plan. Even though citizens can operate their vehicle up to 15 days after their registration has expired without being ticketed, they will be fined the late fee beginning the first day of the month after the registration expires.
  • Senate Bill 446 provides franchise vehicle dealers with a third option for providing a tag for loaner vehicles used while an owner’s vehicle is being serviced by the dealer. The new loaner plates are available to franchise dealers beginning July 1 at a cost of $200 each. There is no limit to the number of loaner plates available to the franchise dealer, and they are issued only through the Dealer Unit at NCDMV’s Raleigh Headquarters. Other options available for use by dealers during vehicle servicing are the 96-hour permit and the U-Drive-It plate. The new loaner plates are optional until December 31, 2018, when they become mandatory for all franchise dealers.
  • House Bill 434 states that medical recertification for renewals of windshield disability placards is not required if the person is certified by a physician as totally and permanently disabled. Beginning July 1, a person who has been certified by a physician as being totally and permanently disabled will not be required to be recertified every five years. The disability placard will still need to be renewed every five years without a physician’s recertification. Since May 23, 2016, new disability parking placards carry two expiration stickers affixed to the placards when they are issued. Temporary placards that are issued for a six-month period, and permanent placards that are issued for five years, are available from license plate agencies across the state.
  • Senate Bill 119 requires all individuals and lienholders who are normally engaged in financing motor vehicles, and who conduct at least five transactions annually, to use the electronic lien system to record information about the security interest in a vehicle. Beginning July 1, lienholders and individuals financing motor vehicles are required to use the electronic system. If a lienholder records three liens manually after this date, they will receive a notification letter from NCDMV advising that when five liens have been recorded, title services will be denied until they comply with the electronic requirements. A hold letter will be mailed to lienholders when five recorded liens are on file, specifying the vehicles affected, and advising that no future title services will be processed until they become an electronic lienholder.
  • House Bill 256 clarifies that a disability determination issued by the U.S. Department of Veterans Affairs may be used for medical certification and recertification requirements for handicapped parking placards.

Wednesday, June 29, 2016

Implied Consent

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New case on Implied consent and and how it relates to breathalizers and blood test.  Thank you to Shea Denning from the NCSOG for the post.

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:
  • Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
  • Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

Three cases were consolidated for oral argument and decision in Birchfield.
Blood test refusal. In Birchfield v. North Dakota, the defendant was arrested for driving while impaired.  The officer advised him that North Dakota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Birchfield refused to let his blood be drawn. He was thereafter prosecuted for his refusal, a misdemeanor crime. The North Dakota Supreme Court affirmed his conviction.
Breath test refusal. In Bernard v. Minnesota, the defendant was arrested for driving while impaired.  The officer advised him that Minnesota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Bernard refused to submit to a breath test. He was prosecuted criminally for his refusal. Because he had four prior impaired driving convictions, Bernard’s refusal was punishable by up to seven years imprisonment. The Minnesota District Court dismissed the charges on the basis that warrantless breath testing was not permitted under the Fourth Amendment.  The state court of appeals reversed, and the state supreme court affirmed the court of appeals.
Blood test with consent. In Beylund v. Levi, the defendant was arrested for driving while impaired and was taken to a hospital.  There he was informed that under North Dakota law, he was required to submit to chemical testing and that failure to do so was a crime. Beylund agreed have his blood drawn and analyzed. Because the resulting alcohol concentration revealed a blood alcohol concentration of 0.25, Beylund’s license was suspended for two years.  He appealed from the suspension, arguing that he did not voluntarily consent to the search, but only did so to avoid criminal prosecution for refusing. The North Dakota Supreme Court rejected Beylund’s argument.
Though their circumstances differed, each petitioner’s claim rested on his assertion that the criminal law cannot compel a person to submit to chemical testing unless a warrant is issued authorizing such testing.
Permissible search incident to arrest?  Writing for the majority, Justice Alito first considered whether the chemical testing of an impaired driving suspect’s breath or blood could be carried out as a warrantless search incident to arrest. The Court explained that the authority to search a person incident to arrest was a categorical rule that did not depend upon the characteristics of a particular arrestee.  The Court then employed the test it had used in Riley v. California, 573 U.S. __ (2014), to determine whether a given type of search should be exempted from the warrant requirement:  Does the need for the search in light of a legitimate government interest outweigh the individual’s privacy interest?
Breath tests. The Court characterized the physical intrusion involved in breath testing as “almost negligible,” and observed that breath tests reveal “only one bit of information,” namely “the amount of alcohol in the subject’s breath.” Slip op. at 20-21. Moreover, the court opined that participation in a breath test does not greatly enhance the embarrassment already inherent in any arrest.
Blood tests. Blood tests are different. The process is “significantly more intrusive than blowing in a tube” as it requires piercing of the skin. Slip op. at 23. And even though such tests involve little pain or risk, people do not relish the process. Moreover, blood samples can provide information beyond a person’s blood alcohol concentration.
State’s interest. The states and the federal government have a paramount interest in keeping public highways safe.  Alcohol consumption is the leading cause of traffic deaths. To deter driving while impaired, states have adopted per se blood alcohol concentration levels and have adopted implied consent laws to induce drivers to submit to chemical testing. States first punished refusal by suspending a driver’s driving privileges.  Some states then upped the ante, prosecuting such refusals as a crime. These laws are designed to provide an incentive to cooperate with testing and thus serve an important function.
Holding. Weighing these interests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The Court found no justification, however, for demanding a blood test as a search incident to arrest. Blood tests are significantly more intrusive, and the State may require the less invasive alternative of a breath test.
Implied consent? The Court next considered whether a warrantless blood tests could be justified based on a driver’s legally implied consent. Noting that prior opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” the Court cautioned that “nothing we say here should be read to cast doubt on them.” Slip op. at 36.
The Court distinguished the laws in the cases before it from the general concept of implied consent laws with civil penalties.  North Dakota and Minnesota not only mandate blood testing but also impose criminal penalties for the refusal to cooperate.  The Court explained that the consequences to which motorists may be deemed to have consented by driving on public roads must be reasonable. The Court concluded that deeming a driver to have consented to a blood test under threat of criminal prosecution was an unreasonable requirement.
Applying its conclusions to the cases before it, the court ruled as follows:
Birchfield: The blood draw that Birchfield refused cannot be justified as a search incident to arrest or based on implied consent. Moreover, there was no exigency. Because Birchfield was threatened with an unlawful search, the Supreme Court reversed his conviction for refusing that search.
Bernard: The breath test that Bernard refused was a permissible search incident to arrest. Officers did not need a warrant to carry out the test, and Bernard had no right to refuse search. Thus, the court affirmed Bernard’s conviction.
Beylund: Beylund submitted to a blood test after being warned that if he did not, he would be criminally prosecuted. That warning was partially inaccurate as he could not lawfully be prosecuted for such a refusal. Thus, the Supreme Court remanded Beylund’s case for a determination by the state court as to whether Beylund’s consent was voluntary.
Birchfield fails to coherently explain the theory of implied consent. The Court did not address whether a person’s refusal to submit to a warrantless blood test may be sanctioned by the revocation of a person’s license. Different parts of the opinion point to different conclusions about that issue. On the one hand, Birchfield went out of its way not to throw shade on implied consent laws that impose civil rather than criminal penalties for refusing chemical testing. That portion of the opinion indicates that implied consent laws that impose civil or administrative penalties do not abridge a suspect’s constitutional rights. On the other hand, Birchfield’s consideration of whether chemical testing is a search incident to arrest suggests that implied consent laws don’t dictate what measures are reasonable under the Fourth Amendment.  And if it isn’t reasonable under the Fourth Amendment to require a person’s submission to a warrantless breath test, then how can a person be sanctioned for that refusal, regardless of whether the sanction is civil or criminal in nature?
Birchfield further indicates that consent is to be determined based on the totality of all the circumstances rather than by a legal construct that implies a driver’s consent to such testing. Many courts with implied consent laws have assumed the voluntariness of a suspect’s acquiescence to testing when it follows implied consent warnings. But see Williams v. State, 771 S.E.2d 373 (Ga. 2015) (discussed here, holding that impaired driving suspect’s agreement to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement).
Impact in NC. Unlike North Dakota and Minnesota, North Carolina does not impose criminal penalties for refusing implied consent testing. Instead, G.S. 20-16.2 requires license revocation (and renders the fact of refusal admissible at the person’s criminal trial) as a consequence of such a refusal. Thus, much of what the court decided in Birchfield will not affect NC.  The Court’s holding that warrantless blood testing under a state’s implied consent law is not permissible as a search incident to arrest is, however, significant for NC. Birchfield makes clear that law enforcement officers in NC who desire to test an impaired driving suspect’s blood for evidence of impairment must obtain a warrant, a person’s consent, or rely upon exigent circumstances to lawfully conduct such testing. Thus, Birchfield affirms the court of appeals’ conclusion in State v. Romano, ___ N.C. App. ___, 785 S.E.2d 168 (2016) (discussed here) that the warrantless withdrawal of blood from an unconscious impaired driving suspect runs afoul of the Fourth Amendment, notwithstanding provisions of NC’s implied consent law that authorize such testing. And, as noted above, Birchfield may also broaden the inquiry into whether a suspect’s consent to testing was voluntary.

Friday, June 10, 2016

When is your registration really due?

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Great article by Shea Denning of NCSOG.

Facts. An undercover Greensboro narcotics detective was monitoring the activities of passengers who disembarked from a bus early in the morning of October 6, 2014, when the actions of one passenger caught his attention. The passenger and his companion got off of the bus and walked into a nearby convenience store. The passenger came back out of the store a couple of minutes later, walked backwards towards the detective’s unmarked car, looked into the car, shooed the detective away, and walked back into the store. A burgundy Buick then pulled into the parking lot. The bus passenger got into the passenger seat of the Buick and his companion got into the right rear seat. The Buick then left the parking lot. The detective entered the Buick’s license plate into his mobile computer terminal, which accessed information from the Division of Motor Vehicles (DMV). The detective, who suspected the pair of drug trafficking activity, subsequently radioed other officers to report that the Buick’s registration was expired and that it “had an inspection violation.”
Another detective received the alert and independently typed the license plate information into his computer. The report from DMV showed that the Buick’s license plate was issued on 9/26/2013, that its status was “EXPIRED,” and that the plate was “VALID THRU: 10152014.” The DMV report contained no information about the status of the car’s inspection. Based on this information, the detective stopped the vehicle and told the driver, Sandy Baskins, that he had been stopped for an expired registration and inspection violation. Baskins consented to a search of the car. A drug-trained dog alerted to the front and rear passenger seats. All three passengers were searched, and officers found heroin inside the pants of the rear seat passenger.
Procedure. The driver, Sandy Baskins, was indicted for trafficking in heroin. He filed a motion to suppress evidence resulting from the traffic stop. The trial court denied the motion. Baskins was convicted at trial and appealed.
Court of Appeals. Baskins challenged the trial court’s findings of fact that the registration and inspection for the Buick had expired. With respect to the registration, the court of appeals cited the rule in G.S. 20-66(g) that permits operation of a vehicle until midnight on the fifteenth day of the month following the month in which the sticker expires
Thus, the court concluded that “[a]s far as the registration was concerned, Defendant was operating the Buick lawfully, and Detective O’Hal was provided confirmation of this fact in the information he requested and received from DMV.” (Slip op. at 7-8).
As for the inspection, the court noted that the DMV screen the officers examined did not contain information about the vehicle’s inspection. Thus, the record did not contain substantial evidence that the Buick was being operated with an expired inspection status.  (Unfortunately for procrastinators like me, there is no fifteen day grace period to obtain a vehicle inspection. See G.S. 20-183.4C(a)(6).)
The appellate court thus overruled the objected-to findings of fact.
But the appellate court did not reverse Baskins’ conviction. Instead, the court of appeals determined that the trial court had not made a proper conclusion of law when it found that “[t]he temporary detention of a motorist upon probable cause to believe he has violated a traffic law (such as operating a vehicle with expired registration and inspection) is not inconsistent with the Fourth Amendment . . . . O’Hal was justified in stopping Defendant[s’] vehicle.”
The court of appeals explained that while this conclusion “intimates that Detective O’Hal was justified in initiating the stop based upon either the alleged registration violations or the alleged inspection violation . . . it does not actually make any such conclusion.” (Slip Op. at 12.)
Thus, the court remanded for “further action consistent with this opinion, including making additional findings of fact and conclusions of law as necessary.” (Slip Op. at 13.) The appellate court stated that the trial court had discretion to take additional evidence “in order to comply with this holding.” Id. (citing State v. Gabriel, 192 N.C. App. 517 (2008) (vacating order denying motion to suppress and remanding for additional evidence where trial court failed to enter a written suppression order containing findings of fact or conclusions of law)).
Down to the wire. I thought everyone knew that a vehicle could not be stopped for an expired NC registration during the fifteen-day grace period following expiration. Now that the court of appeals has cleared up any doubt about that issue, NC motorists can continue to drive halfway through the month that follows the expiration of their vehicles’ registrations without worry of being stopped for a violation of G.S. 20-66. It remains to be seen, however, whether the application of this rule will result in a new trial for Sandy Baskins.