Wednesday, January 24, 2018

Light Bars Prohibited In North Carolina

Image result for cars with light bars

www.kisslinglaw.com

New law prohibits light bars from motor vehicles.  Below is the law.  I did not know this was a problem in our state but apparently it is such a problem that the legislature felt the need to enact a new law to keep this madness out of our state.

 
 
§ 20-130.  Additional permissible light on vehicle.
(a)        Spot Lamps. - Any motor vehicle may be equipped with not to exceed two spot lamps, except that a motorcycle shall not be equipped with more than one spot lamp, and every lighted spot lamp shall be so aimed and used upon approaching another vehicle that no part of the beam will be directed to the left of the center of the highway nor more than 100 feet ahead of the vehicle. No spot lamps shall be used on the rear of any vehicle. For purposes of this section, the term "motorcycle" shall not include autocycles. Autocycles shall be subject to the requirements under this section for motor vehicles.
(b)        Auxiliary Driving Lamps. - Any motor vehicle may be equipped with not to exceed two auxiliary driving lamps mounted on the front, and every such auxiliary driving lamp or lamps shall meet the requirements and limitations set forth in G.S. 20-131, subsection (c).
(c)        Restrictions on Lamps. - Any device, other than headlamps, spot lamps, or auxiliary driving lamps, which projects a beam of light of an intensity greater than 25 candlepower, shall be so directed that no part of the beam will strike the level of the surface on which the vehicle stands at a distance of more than 50 feet from the vehicle.
(d)       Electronically Modulated Headlamps. - Nothing contained in this Chapter shall prohibit the use of electronically modulated headlamps on motorcycles, law-enforcement and fire department vehicles, county fire marshals and Emergency Management coordinators, public and private ambulances, and rescue squad emergency service vehicles, provided such headlamps and light modulator are of a type or kind which have been approved by the Commissioner of Motor Vehicles.
(e)        High Mounted Flashing Deceleration Lamps. - Public transit vehicles may be equipped with amber, high mounted, flashing deceleration lamps on the rear of the vehicle.
 (f)  Light Bar Lighting Device. – Notwithstanding any provision of this section to the contrary, and excluding vehicles described in subsection (d) of this section, and excluding vehicles listed in G.S.20-130.1(b), no person shall drive a motor vehicle on the highways of this State while using a light bar lighting device. This subsection does not apply to or otherwise restrict use of a light bar lighting device with strobing lights.  For purposes of this subsection, the term "light bar lighting device" means a bar -shaped lighting device comprised of multiplel amps capable of projecting a beam of light at an intensity greater than that set forth in subsection (c) of this section
 
 

Friday, January 19, 2018

New Law on Search After Stop

Image result for dogs eating in cars

www.kisslinglaw.com

Great new summary of new case law on Search of Vehicles after Stop and when the stop ends.  Thanks to Shea Denning from the NC SOG.


The court of appeals decided another significant Rodriguez case yesterday, ruling (again) in State v. Reed that the highway patrol trooper who stopped the defendant for speeding on Interstate 95 detained the defendant for longer than necessary to carry out the mission of the stop without reasonable suspicion of other criminal activity.



The friendly pit bull case. When Trooper Lamm of the State Highway Patrol approached the car David Reed was driving, he saw energy drinks, trash, air fresheners, and dog food scattered on the floor of the vehicle. Reed’s fiancĂ©e, Usha Peart, was sitting in the front passenger seat and held a female pit bull in her lap. She told Trooper Lamm the dog was friendly, and he petted the dog. Meanwhile, Reed retrieved his New York driver’s license along with the registration and rental agreement for the vehicle.

Please exit the vehicle. Trooper Lamm told Reed to get out of the car and to come sit in the patrol car. When Reed got out of the car, the trooper frisked him and found a pocket knife.

Reed sat in the front seat of the patrol car. Trooper Lamm’s K-9 was in the back seat. Reed initially sat with the door open and one leg outside of the car. Lamm told him to close the door. Reed said he was scared to do so. Lamm said: “‘Shut the door.  I’m not asking you, I’m telling you to shut the door. I mean you’re not trapped, the door [is] unlocked. Last time I checked we were the good guys.’” (Slip op. at 4.) Reed responded, “‘I’m not saying you’re not,’” to which Lamm replied, “‘You don’t know me, don’t judge me.’”

Where are you headed? Trooper Lamm questioned Reed while he checked his record. Reed admitted that he had previously been arrested for robbery; he said he was in North Carolina to visit family in Fayetteville. When Lamm noticed that the rental agreement listed a different car than the one Reed was driving, he got out of the patrol car to ask Peart for the correct agreement. He told Reed to “‘sit tight.’” (Slip op. at 5.) Peart explained that the rental agreement listed a different car because the original vehicle had been struck and they were driving a replacement vehicle. The trooper called the rental company, which confirmed this information. Peart, like Reed, said the two were traveling to Fayetteville to visit family.

Mind if I ask a few questions? While Reed was still sitting in the front of the patrol car, Trooper Lamm returned his paperwork and driver’s license and issued a warning ticket for speeding. Lamm said he was “‘completely done with the traffic stop,’” but wanted to ask Reed additional questions. Lamm said Reed nodded his head in response. By this time, another trooper had arrived on the scene and had parked his vehicle, with the blue lights activated, behind Lamm’s. This trooper stood outside the passenger door of the patrol car where Reed was sitting.

Sit tight. Lamm asked Reed for permission to search the car. Reed said he should ask Peart and added:  “‘I’m just saying, I’ve got to go to the bathroom, I want to smoke a cigarette, we’re real close to getting to the hotel so that we can see our family, like, I don’t, I don’t see a reason why.’” Lamm told Reed to “‘sit tight,’” and went back to the rental car. By this time, a third trooper was on the scene.

Peart initially said Lamm could not search the car, but subsequently acquiesced to his repeated requests. Lamm found cocaine under the back passenger seat.

Procedural history. Reed was charged with trafficking cocaine. He moved to suppress the evidence discovered in the search of the rental car. The trial court denied the motion. Reed pled guilty, preserving his right to appeal the denial of his motion to suppress, and was sentenced to 70 to 93 months imprisonment. Reed appealed.

The court of appeals in State v. Reed, __ N.C. App. __, 791 S.E.2d 486 (2016), reversed, holding that the trial court’s findings did not support its conclusion that Trooper Lamm had reasonable suspicion of criminal activity to extend the traffic stop and conduct a search after it concluded. The State petitioned for a writ of supersedeas, which the state supreme court granted. The North Carolina Supreme Court subsequently vacated the court of appeals’ opinion and remanded the case for reconsideration in light of State v. Bullock, __ N.C. __, 805 S.E.2d 671 (2017) (discussed here). State v. Reed, ___ N.C. ___, 805 S.E.2d 670 (2017).

Legal backdrop. The United States Supreme Court held in Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609 (2015), that a traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to accomplish its mission. Specifically, Rodriguez held that a traffic stop may not be extended for even a de minimis period to carry out activities, such as a dog sniff, that are unrelated to the mission of the stop, unless that delay is supported by reasonable suspicion to believe that criminal activity is afoot.

The North Carolina Supreme Court in Bullock, ___ N.C. ___, 805 S.E.2d. 671 (2017), considered whether a traffic stop in which the officer ordered the driver to get out of his vehicle and into the patrol car, frisked him, and ran record checks while the defendant was seated in the patrol car, was lawful. The court determined that none of these activities unlawfully prolonged the stop and that, by the time the database checks were complete, the officer had developed reasonable suspicion to prolong the stop so that a dog sniff could be performed. The defendant’s nervous behavior, contradictory and illogical statements, possession of large amounts of cash and multiple cell phones, and his driving of a rental car registered to another person provided reasonable suspicion of criminal activity.

Analysis. The court in Reed determined that Bullock resolved several issues in the case. Under Bullock, Trooper Lamm’s actions of requiring Reed to get out of his car, frisking Reed, and making Reed sit in the patrol car while Lamm checked his record and questioned him did not unlawfully extend the stop. Nevertheless, the court said the case was distinguishable from Bullock because after Trooper Lamm returned Reed’s paperwork and issued the warning ticket, Reed “‘remained unlawfully seized in the patrol car.’” (Slip op. at 10.)

The court explained that while the return of a person’s driver’s license and other paperwork normally marks the end of a traffic stop and the commencement of a consensual encounter, a reasonable person in Reed’s position when the paperwork was returned would not have believed that he was free to terminate the encounter. Reed remained seated in the patrol car. Trooper Lamm continued to question him. When Lamm left the patrol car to ask Peart for consent to search the rental car, he told Reed to “‘sit tight.’” (Slip op. at 10.) In addition, another trooper stood directly outside the car door where Reed was seated. Lamm himself admitted that Reed was not free to leave. This continued detention was not, in the court’s view, consensual nor was it supported by reasonable suspicion that criminal activity was afoot.  Instead, the facts known to the officer, which included Reed’s nervous appearance, the dog, the dog food, and the detritus in the car were, the court said, “legal activity consistent with lawful travel.”

Thus, the court concluded that, even after considering Bullock, the trial court erred in denying the defendant’s motion to suppress.

The dissent. Judge Dillon, who dissented from the first court of appeals decision in Reed, likewise dissented from yesterday’s opinion. Dillon reasoned that Reed consent to the search of the vehicle after the traffic stop concluded and that, even if one assumed he had not, Trooper Lamm had reasonable suspicion of separate, independent criminal activity to support the extension of the stop.

Stay tuned. The dissent provides the State with an appeal of right to the state supreme court. If the State exercises that option, Reed will continue to serve the sentence for which he has been imprisoned since July 2015 and the North Carolina Supreme Court will again be called upon to further define the parameters of Rodriguez as applied to North Carolina traffic stops. If that happens, we’ll be sure to write all about it. Next time, though, I can skip the facts and just remind you that this is the friendly pit bull case.

Friday, January 12, 2018

HABITUAL DWI CAN GET LICENSE

www.kisslinglaw.com
New legislation on Habitual DWI and comments from Shea Denning at the NC SOG.
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017

SESSION LAW 2017-176
SENATE BILL 384


AN ACT to AMEND THE LAW REGARDING THE USE OF MOTIONS FOR APPROPRIATE RELIEF; to clarify the definition of “felony offense” for purposes of the habitual felon law and to remove the sunset on drivers license eligibility for persons convicted of habitual impaired driving; to include breaking and entering with the intent to terrorize as a habitual breaking and entering status offense; to clarify that when a person is charged with an offense which requires mandatory fingerprinting, fingerprinting will be ordered by the court if the offender was not arrested and fingerprinted at the time of the offense; to provide that a private citizen’s showing of probable cause to the magistrate shall include sufficient information supported by oath OR AFFIRMATION that a crime has occurred and shall issue as a summons unless a substantial LIKELIHOOD exists that the defendant will not RESPOND to a SUMMONS; AND TO AMEND THE SHERIFF’S SUPPLEMENTAL PENSION FUND.
The General Assembly of North Carolina enacts:
PART I. MOTIONS FOR APPROPRIATE RELIEF
SECTION 1.(a)  G.S. 15A‑1413(d) reads as rewritten:
“(d)      All motions for appropriate relief filed in superior court shall, when filed, be referred to the senior resident superior court judge, who shall assign the motion as provided by this section for review and administrative action, including, as may be appropriate, dismissal, calendaring for hearing, entry of a scheduling order for subsequent events in the case, including disclosure of expert witness information described in G.S. 15A‑903(a)(2) and G.S. 15A‑905©(2) for expert witnesses reasonably expected to be called at a hearing on the motion, or other appropriate actions.
All motions for appropriate relief filed in district court shall, when filed, be referred to the chief district court judge, who shall assign the motion as provided by this section for review and administrative action, including, as may be appropriate, dismissal, calendaring for hearing, entry of a scheduling order for subsequent events in the case, or other appropriate actions.”
SECTION 1.(b)  G.S. 15A‑1420(b1) reads as rewritten:
“§ 15A‑1420.  Motion for appropriate relief; procedure.

(b1)      Filing Motion With Clerk. –
(1)        The proceeding shall be commenced by filing with the clerk of superior court of the district wherein the defendant was indicted a motion, with service on the district attorney in noncapital cases, and service on both the district attorney and Attorney General in capital cases.
(2)        The clerk, upon receipt of the motion, shall place the motion on the criminal docket. When a motion is placed on the criminal docket, the clerk shall promptly bring the motion, or a copy of the motion, to the attention of the senior resident superior court judge or chief district court judge, as appropriate, for assignment to the appropriate judge pursuant to G.S. 15A‑1413.
(3)        The judge assigned to the motion shall conduct an initial review of the motion. If the judge determines that all of the claims alleged in the motion are frivolous, the judge shall deny the motion. If the motion presents sufficient information to warrant a hearing or the interests of justice so require, the judge shall appoint counsel for an indigent defendant who is not represented by counsel. Counsel so appointed shall review the motion filed by the petitioner and either adopt the motion or file an amended motion. After postconviction counsel files an initial or amended motion, or a determination is made that the petitioner is proceeding without counsel, the judge may direct the State to file an answer. Should the State contend that as a matter of law the defendant is not entitled to the relief sought, the State may request leave to file a limited answer so alleging.”
SECTION 1.©  G.S. 7A‑451(a) reads as rewritten:
“§ 7A‑451.  Scope of entitlement.
(a)        An indigent person is entitled to services of counsel in the following actions and proceedings:
(1)        Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;adjudged.
(2)        A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;Statutes.
(3)        A motion for appropriate relief under Chapter 15A of the General Statutes if appointment of counsel is authorized by Chapter 15A of the General Statutes and the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment;imprisonment.
(4)        A hearing for revocation of probation;probation.
(5)        A hearing in which extradition to another state is sought;sought.
(6)        A proceeding for an inpatient involuntary commitment to a facility under Part 7 of Article 5 of Chapter 122C of the General Statutes, or a proceeding for commitment under Part 8 of Article 5 of Chapter 122C of the General Statutes.
(7)        In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes;Statutes.
(8)        In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible;possible.
(9)        A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes;Statutes.
(10)      Repealed by Session Laws 2003, c. 13, s. 2(a), effective April 17, 2003, and applicable to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of April 17, 2003.
(11)      A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes;Statutes.
(12)      In the case of a juvenile alleged to be abused, neglected, or dependent under Subchapter I of Chapter 7B of the General Statutes;Statutes.
(13)      A proceeding to find a person incompetent under Subchapter I of Chapter 35A, of the General Statutes;Statutes.
(14)      A proceeding to terminate parental rights where a guardian ad litem is appointed pursuant to G.S. 7B‑1101;G.S. 7B‑1101.
(15)      An action brought pursuant to Article 11 of Chapter 7B of the General Statutes to terminate an indigent person’s parental rights.
(16)      A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A‑450.1, 7A‑450.2, and 7A‑450.3 shall not apply to this proceeding.
(17)      A proceeding involving limitation on freedom of movement or access pursuant to G.S. 130A‑475 or G.S. 130A‑145.
(18)      A proceeding involving placement into satellite monitoring under Part 5 of Article 27A of Chapter 14 of the General Statutes.”
SECTION 1.(d)  This section becomes effective December 1, 2017, and applies to motions for appropriate relief filed on or after that date.
PART II. HABITUAL FELONS/CLARIFY PREVIOUS CONVICTIONS
SECTION 2.(a)  G.S. 14‑7.1 reads as rewritten:
“§ 14‑7.1.  Persons defined as habitual felons.
(a)        Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender pursuant to this Article.
(b)        For the purpose of this Article, a felony offense is defined as an to include all of the following:
(1)        An offense which that is a felony under the laws of the State or other sovereign wherein a this State.
(2)        An offense that is a felony under the laws of another state or sovereign that is substantially similar to an offense that is a felony in North Carolina, and to which a plea of guilty was entered, or a conviction was returned regardless of the sentence actually imposed.
(3)        An offense that is a crime under the laws of another state or sovereign that does not classify any crimes as felonies if all of the following apply:
a.         The offense is substantially similar to an offense that is a felony in North Carolina.
b.         The offense may be punishable by imprisonment for more than a year in state prison.
c.         A plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.
(4)        An offense that is a felony under federal law. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article.
©        For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felony offenses prior to July 6, 1967, shall not be felony offenses within the meaning of this Article. Any felony offense to which a pardon has been extended shall not for the purpose of this Article constitute a felony. The burden of proving such pardon shall rest with the defendant and the State shall not be required to disprove a pardon.”
SECTION 2.(b)  Section 7 of S.L. 2009‑369, as amended by Section 61.5 of S.L. 2014‑115, reads as rewritten:
SECTION 7.  This act becomes effective December 1, 2009, and applies to applications for reinstatement that occur on or after that date. This act expires December 1, 2016.”
SECTION 2.©  Subsection (a) of this section becomes effective December 1, 2017, and applies to any offense committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon. Subsection (b) of this section is retroactively effective December 1, 2016. The remainder of this section is effective when it becomes law. Prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.

PART III. INCLUDE BREAKING AND ENTERING WITH INTENT TO TERRORIZE IN HABITUAL BREAKING AND ENTERING
SECTION 3.(a)  G.S. 14‑7.25 reads as rewritten:
“§ 14‑7.25.  Definitions.
The following definitions apply in this Article:
(1)        "Breaking and entering.” – The term means any of the following felony offenses:
a.         First degree burglary (G.S. 14‑51).
b.         Second degree burglary (G.S. 14‑51).
c.         Breaking out of dwelling house burglary (G.S. 14‑53).
d.         Breaking or entering buildings generally (G.S. 14‑54(a)).
d1.       Breaking or entering with intent to terrorize or injure an occupant of the building (G.S. 14‑54(a1)).
e.         Breaking or entering a building that is a place of religious worship (G.S. 14‑54.1).
f.          Any repealed or superseded offense substantially equivalent to any of the offenses in sub‑subdivision a., b., c., d., or e. of this subdivision.
g.         Any offense committed in another jurisdiction substantially similar to any of the offenses in sub‑subdivision a., b., c., d., or e. of this subdivision.
(2)        "Convicted.“ – The person has been adjudged guilty of or has entered a plea of guilty or no contest to the offense of breaking and entering.
(3)        "Status offender.” – A person who is a habitual breaking and entering status offender as described in G.S. 14‑7.26.“
SECTION 3.(b)  This section becomes effective December 1, 2017, and applies to offenses committed on or after that date.

PART IV. FINGERPRINTING UPON ARREST
SECTION 4.(a)  G.S. 15A‑502 is amended by adding a new subsection to read:
"§ 15A‑502.  Photographs and fingerprints.

(e)        Fingerprints or photographs taken pursuant to subsection (a), (a1), or (a2) of this section may be forwarded to the State Bureau of Investigation, the Federal Bureau of Investigation, or other law‑enforcement agencies.
(f)        If a person is charged with an offense for which fingerprints are required pursuant to this section but the person is not arrested for that offense, the court before which the charge is pending shall order the defendant to submit to fingerprinting by the Sheriff or other appropriate law enforcement agency at the earliest practical opportunity. If the person fails to appear for fingerprinting as ordered by the court, the sheriff shall so inform the court, and the court may initiate proceedings for criminal contempt against the person pursuant to G.S. 5A‑15, including issue of an order for arrest pursuant to G.S. 5A‑16, if necessary. The defendant shall continue to be subject to the court’s order to provide fingerprints until submitted.”
SECTION 4.(b)  This section becomes effective December 1, 2017.
PART V. CITIZEN’S WARRANTS
SECTION 5.(a)  G.S. 15A‑304(b) reads as rewritten:
“(b)      When Issued. – A warrant for arrest may be issued, instead of or subsequent to a criminal summons, when it appears to the judicial official that the person named should be taken into custody. Circumstances to be considered in determining whether the person should be taken into custody may include, but are not limited to, failure to appear when previously summoned, facts making it apparent that a person summoned will fail to appear, danger that the person accused will escape, danger that there may be injury to person or property, or the seriousness of the offense.
(1)        Upon a finding of probable cause pursuant to subsection (d) of this section, the issuing official shall issue a criminal summons instead of a warrant, unless the official finds that the accused should be taken into custody. Circumstances to be considered in determining whether the accused should be taken into custody may include, but are not limited to, any of the following:
a.         The accused has a history of failure to appear before the court as required, or there is other evidence that the person is unlikely to appear in response to a summons for the current proceeding.
b.         There is evidence that the accused is likely to escape or otherwise flee the State in order to avoid prosecution for the offense alleged.
c.         There is evidence of imminent danger of harm to persons or property if the accused is not taken into custody.
d.         The location of the accused is not readily discoverable, such that a criminal summons would be unlikely to be served before any court date assigned at the time of issue.
e.         A relevant statute provides that arrest is mandatory for an offense charged.
f.          The seriousness of the offense. However, the fact that the offense charged is a felony shall not, by itself, constitute grounds for the issuance of a warrant.
(2)        Notwithstanding subsection (d) of this section, an official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit. If the finding of probable cause pursuant to subsection (d) of this section is based solely upon the written affidavit of a person who is not a sworn law enforcement officer, the issuing official shall not issue a warrant for arrest and instead shall issue a criminal summons, unless one of the following circumstances exists:
a.         There is corroborating testimony of the facts establishing probable cause from a sworn law enforcement officer or at least one disinterested witness.
b.         The official finds that obtaining investigation of the alleged offense by a law enforcement agency would constitute a substantial burden for the complainant.
c.         The official finds substantial evidence of one or more of the grounds listed in subdivision (1) of this subsection.”
SECTION 5.(b)  This section becomes effective December 1, 2017, and applies to warrants issued on or after that date.
PART VI. SHERIFFS’ SUPPLEMENTAL PENSION FUND CHANGES
SECTION 6.(a)  G.S. 143‑166.82 reads as rewritten:
“§ 143‑166.82.  Assets.
(a)        On and after July 1, 1985, each Clerk of Superior Court shall remit to the Department of Justice the monthly receipts collected pursuant to G.S. 7A‑304 (a)(3a) to be deposited to the credit of the Sheriffs’ Supplemental Pension Fund, hereinafter referred to as the Fund, to be used in making monthly pension payments to eligible retired sheriffs under the provisions of this Article and to pay the cost of administering the provisions of this Article.
(a1)      The Department of Justice shall, at the beginning of each calendar year, calculate the amount of funds, in addition to those funds from subsection (a) of this section and from G.S. 143‑166.83(f), needed for that year to pay the pension benefits under this Article and shall bill each county for that amount on a pro rata basis based on the most recent population estimates by the Office of State Budget and Management for each county. The amount so billed shall be paid by each county no later than March 1st of that year to the Department of Justice and shall be deposited into the Fund. For funding this contribution to the Fund, counties may use the portion of the civil process service fee per G.S. 7A‑311(a)(1) that is not required by statute to be used to ensure the timely service of process within the county, may use other funds, or both.
(b)        The State Treasurer shall be the custodian of the Sheriffs’ Supplemental Pension Fund and shall invest its assets in accordance with the provisions of G.S. 147‑69.2 and G.S. 147‑69.3.”
SECTION 6.(b)  G.S. 143‑166.83 reads as rewritten:
“§ 143‑166.83. Disbursements.
(a)        Repealed by Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 54, effective January 1, 1993.
(b)        Immediately following January 1, 1993, and the first of January of each succeeding calendar year thereafter, the Department of Justice shall divide an amount equal to ninety percent (90%) of the assets of the Fund at the end of the preceding calendar year and shall add to that amount any assets remaining pursuant to subsection (f) of this section and the amounts pursuant to G.S. 143‑166.82(a1) and disburse the same as monthly payments in accordance with the provisions of this Article.
©        Ten percent (10%) of the Fund’s assets as of January 1, 1993, and at the beginning of each calendar year thereafter, may be used by the Department of Justice in administering the provisions of this Article. This ten percent (10%) is to be derived from the Fund’s assets prior to the addition of assets remaining pursuant to subsection (f) of this section.
(d)       All the Fund’s disbursements shall be conducted in the same manner as disbursements are conducted for other special funds of the State.
(e)        If, for any reason, the Fund shall be insufficient to pay any pension benefits owed under this Article or other charges, then all benefits or payments shall be reduced pro rata for as long as the deficiency in amount exists. No claim shall accrue with respect to any amount by which a pension payment shall have been reduced.
(f)        Any assets remaining after reserving an amount equal to the disbursements required under subsections (b) and © of this section shall be accrued and included in disbursements for pensioners in succeeding years.”
SECTION 6.©  G.S. 143‑166.85 reads as rewritten:
“§ 143‑166.85.  Benefits.
(a)        An eligible retired sheriff shall be entitled to and receive an annual pension benefit, payable in equal monthly installments, equal to one share for each full year of eligible service as sheriff multiplied by his total number of years of eligible service. The amount of each share shall be determined by dividing the total number of years of eligible service for all eligible retired sheriffs on December 31 of each calendar year into the amount to be disbursed as monthly pension payments in accordance with the provisions of G.S. 143‑166.83(b). In no event however shall a monthly pension under this Article exceed an amount, which an amount that, when added to a retired allowance at retirement from the Local Governmental Employees’ Retirement System or to the amount he would have been eligible to receive if service had not been forfeited by the withdrawal of accumulated contributions, is greater than equal to seventy‑five percent (75%) of a sheriff’s equivalent annual salary immediately preceding retirement computed on the latest monthly base rate, to a maximum amount that does not exceed (i) of one thousand five hundred dollars ($1,500).($1,500) or (ii) the sheriff’s equivalent annual salary immediately preceding retirement computed on the latest monthly base rate when the benefit described in this subsection is added to the amount of the benefit the sheriff receives under G.S. 143‑166.42 and the amount of the sheriff’s retired allowance at retirement from the Local Governmental Employees’ Retirement System or the amount the sheriff would have been eligible to receive if service had not been forfeited by the withdrawal of accumulated contributions.
(b)        All monthly pensions payable under this Article shall be paid on the last business day of each month.
©        At the death of the pensioner, benefits for the current calendar year will continue and be paid in monthly installments to the decedent’s spouse or estate, in accordance with the provisions of Chapter 28A of the General Statutes. Benefits will cease upon the last payment being made in December of the current year.
(d)       Monthly pensions payable under this Article will cease upon the full‑time reemployment of a pensioner with an employer participating in the Local Governmental Employees’ Retirement System for as long as the pensioner is so reemployed.
(e)        Repealed by Session Laws 1989, c. 792, s. 2.9.
(f)        Nothing contained in this Article shall preclude or in any way affect the benefits that a pensioner may be entitled to from any state, federal or private pension, retirement or other deferred compensation plan.”
SECTION 6.(d)  This section becomes effective January 1, 2018.

PART VII. EFFECTIVE DATE
SECTION 7.  Except as otherwise provided, this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 30th day of June, 2017.
Legislation enacted by the General Assembly this session again makes it possible for persons convicted of habitual impaired driving to (eventually) have their driving privileges restored.
S.L. 2017-176 (S 384) removed the sunset clause in the 2009 legislative act that created G.S. 20-19(e4), putting that statutory provision, which expired in December 1, 2016, back on the books.  Effective July 21, 2017, a person whose driver’s license is permanently revoked for a conviction of habitual impaired driving may have his or her driver’s license restored upon satisfying the following conditions:
  • The person’s license must have been revoked for at least 10 years following the completion of any sentence imposed for habitual impaired driving;
  • The person must not have been convicted of any criminal offense in any state or federal court in the 10 years preceding the date of the application; and
  • The person must not currently use alcohol, unlawfully use any controlled substance, or excessively use prescription drugs.
The person seeking to have his or her driver’s license restored must provide the DMV hearing officer before whom he or she appears with satisfactory proof that these conditions are satisfied.
The restoration of a person’s driver’s license pursuant to G.S. 20-19(e4) is conditioned upon the person only driving a vehicle equipped with ignition interlock and not driving with any measurable alcohol concentration. G.S. 20-17.8(b). These conditions remain in effect for seven years from the date of restoration. G.S. 20-17.8©(3).
Since the habitual DWI restoration provision was first enacted in 2009, 216 people have had their driver’s licenses restored. There are around 300 convictions for habitual impaired driving each year. Depending upon the numbers of people in this population who are able to satisfy the restoration criteria, restoration applications for such drivers could number in the hundreds each year.
If the legislative history is a guide, the pilot legislation enacted in 2009 to restore licenses to this population has been successful.  The first iteration of the restoration provision was set to expire in 2014.  It was then extended to 2016.  And now it is back on the books with no sunset date.

Friday, January 5, 2018

Riding with Feet on Dashboard

    
www.kisslinglaw.com

I just came across this article.  While it is not illegal, it is not a good idea.
A Tennessee fire department took to Facebook on August 3 to share an extremely crucial car safety tip that often gets overlooked.
The Chattanooga Fire Department shared the alarming message, which was originally posted by road safety activist Shane O'Connor on Twitter, to warn residents about the dangers of riding in a car with their feet on the dashboard.
“While traveling this weekend, I noticed many passengers had their feet on the dashboard of their car,” the post read. “Airbags deploy between 100 & 220 MPH. If you ride with your feet on the dash and you’re involved in an accident, the airbag may send your knees through your eye sockets.”
While that may sound like a far-fetched scenario, one Georgia woman can confirm that this nightmare can, indeed, happen to anyone.
Audra Tatum says that she used to ride in cars with her feet on the dashboard all the time.
“My husband would tell me, ‘If we have a wreck it’s going to break your leg.’ I dismissed him,” she told WTVC.

But on August 2, 2015, all that changed when Tatum and her husband T-boned another vehicle on their way to pick up their two son’s from her parents’ house.
At the time of the crash, Tatum wasn’t wearing a seat belt and was also resting her foot up against the dashboard.
The force of the airbags exploding threw her foot up into her face, shattering her nose, ankle, femur and shoulder.
Sadly, doctors told Tatum that if she had both of her feet on the floor at the time of the crash, she likely wouldn’t have sustained any injuries at all.