NC Seat Belt Laws

 
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Great post from NC SOG.  Thanks to Shea Denning for the post.  As I teach a 4 hour safe driving course, I am amazed at the reasons young people give for not wearing their seat belts.  In one class, we had a student who wore his seat belt during the day but not at night.  His reasoning was that at night he did not want to get trapped in the car in case of an accident.  In every class, we have a least one student who claims to have a friend who lived because they were not wearing their seat belt.  Maybe it is a generational thing but I cannot imagine not wearing my seat belt.

State law has mandated seat belt use by North Carolina motorists for more than thirty years. The seat belt law has, however, changed a bit over time. As a result, not everyone is clear on who is covered, what is required, and what the penalties are for violations. This post covers the particulars of North Carolina’s seat belt requirements and addresses three common areas of confusion.
1. Everyone in the car must buckle up.
G.S. 20-135.2A(a) requires that each occupant of a motor vehicle manufactured with seat belts have a seatbelt properly fastened about his or her body when the vehicle is in forward motion on a street or highway. When it was first enacted, G.S. 20-135.2A (1985) only required seat belt use by drivers and front seat passengers. Ten years ago, the General Assembly amended the law to require that everyone in the vehicle, including rear seat passengers, buckle up.
A separate statute, G.S. 20-137.1, requires that drivers with passengers who are under 16 years of age have such passengers secured in a child passenger restraint system or seat belt.
A handful of exceptions to the seat-belts-for-all-occupants requirement are listed in G.S. 20-135.2A(c).They apply to the following persons and motor vehicles:

• Drivers or occupants of noncommercial motor vehicles with medical or physical conditions that prevent seat belt restraint;
• Rural letter carriers;
• Newspaper delivery persons while delivering newspapers;
• Drivers and passengers who frequently stop and leave their vehicles or deliver property from their vehicles if the vehicle’s speed between stops is 20 mph or less;
• Property carrying vehicles used for agricultural purpose in intrastate commerce;
• Motor vehicles that are not required to be equipped with seat belts under federal law;
• Occupants of a motor home other than the driver and front seat passengers;
• Persons in the custody of a law enforcement officer who are being transported in the back of a law enforcement vehicle; and
• Passengers of a residential garbage or recycling truck while the truck is operating during collection rounds.

2. A motor vehicle may not be stopped for a back-seat passenger’s failure to buckle up.
A law enforcement officer who has reasonable grounds to believe that a driver or front seat passenger does not have a seat belt properly fastened about his or her body may stop the car to investigate.  A law enforcement officer who has reasonable grounds to believe that a rear seat occupant is not wearing a seat belt may not. That’s because G.S. 20-135.2A(d1) categorizes the failure to buckle up in the back seat as a secondary violation for which a vehicle may not be stopped. A law enforcement officer who has lawfully stopped a vehicle for another reason and learns in the process of a rear seat belt violation may, of course, cite the driver for this offense. Nearly as many charges were issued for unbuckled rear seat passengers in 2015 (12,847) as there were for unrestrained front-seat passengers (13,808). Charges for both categories were vastly outnumbered by the 108,320 charges issued for unbuckled drivers that year.
3. You need a statute book and a calculator to figure out the penalty for front seat violations.
The monetary penalty for a seat belt violation has significantly increased since seat belt use was first mandated. Back in 1986, a violation of the seat belt law (then, as now, an infraction) was punishable by a fine of $25. No court costs were assessed. Today, the penalty for a front-seat occupant’s failure to wear a seat belt is $25.50 plus $153.50 in district court costs. That’s a total of $179.
It is much simpler to calculate the costs of a rear seat violation. The penalty is a flat $10 and no costs may be assessed.
Are statutory amendments on the horizon? 
The Child Fatality Task Force, a legislative study commission, has recommended that law enforcement officers be permitted to stop vehicles for a back seat passenger’s failure to wear a seat belt and that the fine for back seat violations be increased to $25.  The task force contends that these changes are necessary to meet occupant protection criteria established by the National Highway Traffic Safety Administration and to shore up certain federal funds. The task force further contends that making rear seat belt requirements a primary enforcement violation will increase seat belt usage. The group cites research findings that a greater percentage of fatal and serious injuries occur to unrestrained rear seat occupants than to unrestrained front seat occupants. It also states an unrestrained back seat passenger can injure a front seat passenger in a crash.

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.

Is HGN enough to Arrest for DWI

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I have a case scheduled for trial this week in Wake County.  The only portion of the Field Sobriety Test my client failed was the HGN test where he had 4 of 6 clues.  He did great on all other parts of the test.  The question is whether or not this sole factor is sufficient to create probable cause to arrest.  Below is the relevant case law.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-269
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    6 January 2015


STATE OF NORTH CAROLINA

      v.                                      Durham County
                                              No. 12 CRS 61669
MARGARET K. SEWELL



      Appeal by the State from order entered 3 October 2013 by

Judge Carl R. Fox in Durham County Superior Court.                  Heard in the

Court of Appeals 27 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State.

      Kimberly P. Hoppin, for defendant-appellee.


      CALABRIA, Judge.


      The State appeals, pursuant to N.C. Gen. Stat. § 15A-979

and § 15A-1445,        from an order granting Margaret K. Sewell’s

(“defendant”)      motion    to   suppress    evidence     gathered      after   her

arrest     and   dismissing    the     offense   of   driving    while    impaired

(“DWI”).     We affirm in part and reverse in part.

                                  I. Background

      On the evening of 16 November 2012, the North Carolina
                                        -2-
State     Highway   Patrol       (“NCSHP”)     conducted       a     checkpoint     on

University Drive at the entrance to Forest Hills Park in Durham,

North Carolina.         The checkpoint’s primary purpose was to check

for DWI offenses.          Sergeant Maurice Devalle (“Sgt. Devalle”)

supervised the checkpoint, which was conducted pursuant to a

written authorization form and NCSHP policy.                    In addition, the

checkpoint was marked by patrol vehicles with their blue lights

activated,     troopers        participating       in   the        checkpoint      wore

reflective     vests     and    held   flashlights,      and       every    car    that

approached the checkpoint was checked.

    Shortly      after    midnight     on    17    November     2012,      defendant,

driving    a   Toyota    sport    utility    vehicle     with       one    passenger,

approached the checkpoint.             When NCSHP Trooper Jeremy Doston

(“Trooper      Doston”)         requested         defendant’s        license        and

registration, he detected a strong odor of alcohol emanating

from defendant’s vehicle.          Although Trooper Doston observed that

defendant’s     eyes     were    red   and   glassy,     her       speech    was    not

slurred, and she retrieved her license and registration without

difficulty.      Defendant initially denied drinking alcohol that

evening, but later admitted to drinking a glass of wine.

    Trooper Doston requested that defendant exit her vehicle

and perform a series of field sobriety tests.                        Trooper Doston

observed that defendant exhibited no clues of intoxication on
                              -3-
either the “One-Leg Stand” test or the “Walk and Turn” test.

However,       defendant    displayed            six    out    of    six       clues    on    the

horizontal      gaze     nystagmus            test    (“HGN    test”).          In   addition,

defendant performed two Alco-sensor breath tests, both of which

indicated       that    defendant’s            breath     tested       positive        for    the

presence of alcohol.                As a result, defendant was arrested and

charged with DWI.

       Defendant subsequently pled guilty to DWI in Durham County

District     Court.        On       16   May    2013,    the     trial     court       sentenced

defendant to sixty days in the custody of the Sheriff of Durham

County,      suspended      defendant’s              sentence,      and    placed       her    on

unsupervised probation for twelve months.                         Defendant appealed to

Durham County Superior Court for a trial de novo.

       On 11 August 2013, defendant filed a pretrial motion to

suppress all evidence gathered after the stop of her vehicle and

after her arrest.           After a hearing, where both Trooper Doston

and Sgt. Devalle testified, the trial court entered an order on

3    October    2013    granting         defendant’s          motion      to    suppress      and

dismissed defendant’s DWI offense.                     The State appeals.

                                II. Motion to Suppress

       “In     evaluating       a    trial      court’s       ruling      on    a    motion    to

suppress . . . the trial court’s findings of fact are conclusive

on    appeal    if     supported         by    competent       evidence,        even     if   the
                                       -4-
evidence is conflicting.”           State v. Allen, 

197 N.C. App. 208

,

210, 

676 S.E.2d 519

, 521 (2009) (citation omitted).                             Findings

not   challenged     on   appeal    are    deemed          supported      by   competent

evidence and are binding on appeal.                    State v. Biber, 

365 N.C. 162

, 168, 

712 S.E.2d 874

, 878 (2011).                      “Conclusions of law are

reviewed de novo[.]”        Id.

       As an initial matter, since the State does not challenge

the trial court’s findings, they are binding on appeal.                                 Id.

Neither party contests the validity of the checkpoint on appeal.

Rather, the State argues that the trial court erred in granting

defendant’s     motion    to    suppress        because      the   totality       of    the

circumstances indicate that Trooper Doston had probable cause to

arrest defendant for DWI.           Therefore, we must determine whether

Trooper Doston lacked probable cause to arrest defendant, and

whether the trial court properly granted defendant’s motion to

suppress.

       “Probable cause requires only a probability or substantial

chance   of    criminal     activity,     not     an    actual     showing       of    such

activity.”      State     v.   Teate,     180    N.C.      App.    601,    606-07,      

638 S.E.2d 29

, 33 (2006) (quoting Illinois v. Gates, 

462 U.S. 213

,

244 n.13, 

76 L. Ed. 2d 527

, 552 n.13 (1983)).                    “Probable cause for

an    arrest   has   been      defined    to     be    a    reasonable         ground    of

suspicion, supported by circumstances strong in themselves to
                               -5-
warrant a cautious man in believing the accused to be guilty.”

Id.   at   607,     638   S.E.2d     at    33    (citation       omitted).          “Whether

probable      cause    exists      to     justify      an     arrest    depends      on     the

‘totality of the circumstances’ present in each case.”                              State v.

Sanders, 

327 N.C. 319

, 339, 

395 S.E.2d 412

, 425 (1990), cert.

denied, 

498 U.S. 1051

, 

112 L. Ed. 2d 782

 (1991).

       The State relies in part upon State v. Rogers, 124 N.C.

App. 364, 

477 S.E.2d 221

 (1996), superseded by statute as stated

in    State   v.    Overocker,      ___     N.C.       App.    ___,    

762 S.E.2d 921

,

(2014), to support its argument that Trooper Doston had probable

cause to arrest defendant for DWI.                          In Rogers, the defendant

stopped his vehicle in the middle of an intersection to ask the

trooper    directing        traffic      for    directions.            Id.    at    366,    477

S.E.2d at 222.        The trooper detected a strong odor of alcohol on

the defendant’s breath, and administered one Alco-sensor test

before arresting the defendant.                  Id.     The trial court denied the

defendant’s motion to suppress.                    Id.        On appeal from his DWI

judgment,     this    Court       held    that    while       the   trooper        failed    to

administer the Alco-sensor test twice, as required by statute,

the trooper did not rely solely on the odor of alcohol. Id. at

369-70,    477     S.E.2d    at    224.        This     Court    concluded         there    was

adequate evidence to support a finding of probable cause                                     to

arrest     the     defendant.       Id.         The    trooper      not      only   had     the
                                           -6-
opportunity    to    consider     the     defendant’s      .13   Alco-sensor     test

result,1 but also to observe and speak with the defendant. Id. at

370, 477 S.E.2d at 224.             Therefore, the trial court properly

denied the defendant’s motion to suppress.                 Id.

       The   facts   in   the    instant    case     are   distinguishable      from

Rogers.      The defendant in           Rogers   initiated contact with the

arresting officer by stopping the vehicle he was driving in the

middle of the intersection, and the trooper detected a strong

odor of alcohol emanating from the defendant, who was the sole

occupant of the vehicle.             In the instant case, defendant was

stopped at a checkpoint, had not displayed any bad driving or

violated any motor vehicle laws, and the strong odor of alcohol

that   Trooper     Doston      detected    was    emanating      from   defendant’s

vehicle, not from defendant, who was accompanied by a passenger.

       According     to   the    trial     court’s    findings     in    the   order

regarding     defendant’s        motion     to     suppress,      Trooper      Doston

observed defendant’s red, glassy eyes and defendant exhibited

six of six clues on the HGN test, as well as positive results

for    the   presence     of    alcohol    on    defendant’s     two    Alco-sensor

breath tests.        However,      Trooper Doston did not testify that

1
  The statutory language that allowed the arresting officer in
Rogers to consider the numerical reading of the Alco-sensor test
was superseded by statute as noted in State v. Overocker, ___
N.C. App. ___, ___, 

762 S.E.2d 921

, 929 (2014).    See N.C. Gen.
Stat. § 20-16.3(d) (2013).
                               -7-
defendant herself was the source of the odor of alcohol.                        The

trial court also found that defendant’s speech was not slurred,

she   retrieved     and   provided   Trooper      Doston    with   her    driver’s

license and registration without any difficulty or delay, and

she was steady on her feet when Trooper Doston requested that

she exit her vehicle.           In addition, defendant followed Trooper

Doston’s instructions at all times, and was polite, cooperative,

and respectful to him during their encounter.                  The trial court

further found that defendant exhibited no clues of intoxication

on the “One-Leg Stand” and “Walk and Turn” tests.                        The trial

court concluded, “[t]he facts and circumstances known to Trooper

Dotson [sic] as a result of his observations and testing of the

Defendant      were    insufficient,     under      the     totality      of    the

circumstances, to form an opinion in the mind of a reasonable

and   prudent     man/officer     that   there     was     probable    cause”    to

believe defendant had committed the offense of DWI, and granted

defendant’s motion to suppress.

      The   trial     court’s   unchallenged      findings,    based     upon   the

totality of the circumstances, show that the circumstances were

not   strong    enough    in    themselves   to    warrant     probable     cause.

Since there was no probable cause to support defendant’s arrest,

and the trial court’s findings support its conclusions of law,
                                            -8-
we   therefore      hold    that     the     trial     court    properly     granted

defendant’s motion to suppress.

                            III. Motion to Dismiss

     The    State    also    argues    that     the     trial    court     erred   in

granting a motion to dismiss.              We agree.

            The granting of a motion to suppress does
            not mandate a pretrial dismissal of the
            underlying   indictments.      The   district
            attorney may elect to dismiss or proceed to
            trial without the suppressed evidence and
            attempt to establish a prima facie case. If
            so, a defendant may move to dismiss at the
            close of the State’s evidence and renew his
            motion at the close of all evidence.

State v. Edwards, 

185 N.C. App. 701

, 706, 

649 S.E.2d 646

, 650

(2007) (citing N.C. Gen. Stat. § 15-173 (2005)).

     In    the    instant    case,    defendant        moved    to   suppress      the

evidence obtained subsequent to her arrest, and the trial court

granted    her    motion.     However,        defendant’s       appellate    counsel

concedes that the record does not indicate that defendant made a

motion to dismiss, and her case was still in the pretrial stage.

Therefore, pursuant to Edwards, the State, not the trial court,

had the option to either dismiss the DWI offense or proceed to

trial without the suppressed evidence and attempt to establish a

prima     facie   case.       Therefore,        the    trial     court     erred    in

dismissing defendant’s DWI offense.

                               IV. Conclusion
                             -9-
    Under the totality of the circumstances, the trial court

properly      concluded    that       Trooper    Doston     lacked       sufficient

probable cause to arrest defendant for the offense of DWI, and

therefore      correctly   granted      defendant’s       motion    to    suppress.

However, the trial court erred in dismissing the DWI offense as

a result of the pretrial motion to suppress.                       Therefore, we

affirm   the    portion    of   the    trial    court’s    order    granting    the

motion   to    suppress,    but   reverse       the   portion      of    the   order

dismissing the matter.

    Affirmed in part, reversed in part.

    Judges ELMORE and STEPHENS concur.

    Report per Rule 30(e).
 

Field Sobriety Test

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Great article on Field Sobriety Test by Shea Denning at NC School of Government.

ost drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested.  Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment:  the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination.  That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested?  Must he first be provided Miranda warnings?
Generally no.
Why?  Because the evidence gathered usually is physical rather than testimonial or communicative in nature.
Case in point. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the United States Supreme Court considered whether a trial court erred in admitting a videotape of the defendant filmed after his arrest on impaired driving charges but before he was given Miranda warnings. The videotape included footage of the defendant answering questions at the booking center, including:  “[W]hen you turned six years old, do you remember what the date was?” The defendant responded, “No, I don’t.” The videotape also showed the defendant performing the three standardized field sobriety tests and captured the statements he made during those tests.
The trial court admitted the videotape and subsequently rejected Muniz’s motion for a new trial based on the tape’s admission. The superior court reversed.  Though it agreed that no Miranda warnings were required before Muniz was asked to submit to a field sobriety test because such tests elicit physical rather than testimonial evidence, the court held that when the tests begin to yield communicative statements, Miranda is implicated.  Thus, the superior court concluded that Muniz’s answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the physical tests were testimonial.  The United States Supreme Court granted certiorari.
Answers to questions at booking. The Supreme Court first considered whether Muniz’s answers to the questions posed at the booking center were testimonial, explaining that if they were, they should have been suppressed since Muniz was not advised of his Miranda rights until after the videotaped proceedings concluded. A majority of the court concluded that Muniz’s answers to questions regarding his name, address, height, weight, eye color, date of birth, and current age did not constitute custodial interrogation, though they disagreed as to why.  Four justices relied on an exception for routine booking questions, while another four held that the statements were not testimonial.  Five justices agreed that the sixth birthday question required a testimonial response, as it left Muniz with the “choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate.”  Id. at 599. The court explained that the incriminating inference of impaired mental faculties stemmed not simply from the fact that Muniz slurred his response (which provided physical rather than testimonial evidence of impairment) but also from the testimonial aspect of the response, which revealed Muniz’s mental confusion.
Videotape of field sobriety tests. The Supreme Court quickly disposed of Muniz’s argument that the videotape of the field sobriety tests, which included Muniz’s verbal statements, should have been suppressed. Noting that the officer’s dialog with Muniz concerning the sobriety tests “consisted primarily of carefully scripted instructions as to how the tests were to be performed,” the court determined that the “instructions were not likely to be perceived as calling for any verbal response and therefore were not ‘words or actions’ constituting custodial interrogation.” Id. at 603. Thus, the court concluded that “Muniz’s incriminating utterances during this phase of the videotaped proceedings were ‘voluntary’ in the sense that they were not elicited in response to custodial interrogation.” Id. at 604.
What about alphabet and counting tests?  Several courts have considered post-Muniz whether non-standardized field sobriety tests that require verbal responses implicate the privilege against self-incrimination. Most have included that such responses are not testimonial; thus no Miranda warnings are required before they are administered.  The Supreme Judicial Court of Massachusetts, Suffolk, explained in Vanhouten v. Commonwealth, 676 N.E.2d 460 (Mass. 1997), that because the alphabet cannot be “fabricated or guessed at” a person reciting it is “not faced with the dilemma of deciding between a true of false answer.” Id. at 466.  “As such,” the court explained, “the recitation of the alphabet lacks inherent communicative value because it does not convey knowledge of any fact specific to the person being questioned.” Id. (citing cases from ten other states reaching the same conclusion with respect to alphabet recitation and counting exercises). The Supreme Court of Florida, however, concluded in Allred v. State, 622 So.2d 984 (Fla. 1993), that suspects who were asked to recite the alphabet from “c” to “w” and to count from 1001 to 1030 were being interrogated as “a reasonable person would conclude that the request to recite, out of the ordinary sequence, letters and numbers was designed to lead to an incriminating response.” Id. at 987.

North Carolina DWI Grossly Aggravating Factors

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The following are Grossly Aggravating Factors for DWI sentencing.

Determining Existence of Grossly Aggravating Factors. - At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:

(1)        A prior conviction for an offense involving impaired driving if:

a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.         The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

(2)        Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

(3)        Serious injury to another person caused by the defendant's impaired driving at the time of the offense.

(4)        Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).

  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).

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.

Riding in the open bed of a truck

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I was at dinner the other night and I was asked whether or not his child could ride in the back of a pick up truck.  The answer is. "it depends".

Here is the statute.

§ 20-135.2B.  Transporting children under 16 years of age in open bed or open cargo area of a vehicle prohibited; exceptions.

(a)        The operator of a vehicle having an open bed or open cargo area shall ensure that no child under 16 years of age is transported in the bed or cargo area of that vehicle. An open bed or open cargo area is a bed or cargo area without permanent overhead restraining construction.

(b)        Subsection (a) of this section does not apply in any of the following circumstances:

(1)        An adult is present in the bed or cargo area of the vehicle and is supervising the child.

(2)        The child is secured or restrained by a seat belt manufactured in compliance with Federal Motor Vehicle Safety Standard No. 208, installed to support a load strength of not less than 5,000 pounds for each belt, and of a type approved by the Commissioner.

(3)        An emergency situation exists.

(4)        The vehicle is being operated in a parade.

(5)        The vehicle is being operated in an agricultural enterprise, including providing transportation to and from the principal place of the agricultural enterprise.

(6)        Repealed by Session Laws 2008-216, s. 1, effective October 1, 2008.

(c)        Any person violating this section shall have committed an infraction and shall pay a penalty of not more than twenty-five dollars ($25.00), even if more than one child less than 16 years of age is riding in the open bed or open cargo area of a vehicle. A person found responsible for a violation of this section may not be assessed court costs.

(d)       No drivers license points or insurance surcharge shall be assessed on account of violation of this section. A violation of this section shall not constitute negligence per se.  (1993 (Reg. Sess., 1994), c. 672, s. 1; 1995, c. 163, s. 7; 1999-183, s. 4; 2008-216, s. 1.)

Can a Misdemeanor Conviction for Driving While Impaired Be Expunged?

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Great article on getting an DWI conviction expunged.  Thank you as always to the NC school of government.

I have been working on a theory of everything . . . for expunctions. It’s a small corner of the criminal justice universe, but a critical one for people with past convictions. The subject can be maddeningly complex, at times a seemingly impenetrable black hole. I have been trying to master the mysteries of our expunction statutes in updating my 2012 Guide to Relief from a Criminal Conviction (which you can find here, but beware of subsequent changes in the law).
Without further physics puns, here’s one of the questions I’ve looked at: Can a person expunge a misdemeanor conviction under G.S. 15A-145.5 for driving while impaired (DWI)? As the statute is currently worded, the answer is yes.
Enacted in 2012, G.S. 15A-145.5 allows for the expunction of older convictions for “nonviolent” misdemeanors and felonies. The meaning of a “nonviolent” offense is determined by what it is not. G.S. 15A-145.5(a) defines an offense as “nonviolent” if it is not a Class A through G felony, a Class A1 misdemeanor, or one of a number of offenses specified in the statute, such as an offense requiring sex offender registration. Consequently, Class H and I felonies and Class 1 through 3 misdemeanors can be expunged as long as they are not among the offenses specifically excluded from relief. See generally Kyprianides v. Martin, ___ N.C. App. ___, 763 S.E.2d 17 (2014) (unpublished) (finding that because conviction for misdemeanor cruelty to animals was not Class A1 misdemeanor and did not fall into excluded categories, it could be expunged under G.S. 15A-145.5).
A misdemeanor DWI conviction is not on the list of excluded offenses. The determinative question then is whether a DWI is a Class 1 misdemeanor or lower. Unlike most misdemeanors, a DWI does not have a specific classification, but in other contexts the North Carolina courts have treated it as a Class 1 misdemeanor. See State v. Armstrong, 203 N.C. App. 399 (2010); State v. Gregory, 154 N.C. App. 718 (2002). Under these decisions, a DWI would be eligible for expunction under G.S. 15A-145.5 if the petitioner meets the other statutory conditions. (Note that Gregory, on which Armstrong relies, was decided before cases holding that an offense’s maximum sentence is determined by the maximum sentence that the particular defendant could receive, not the maximum for the offense generally. See Blakely v. Washington, 542 U.S. 296 (2004). A DWI punished at Levels Three, Four, or Five carries a maximum sentence from sixty days to six months and might be considered a Class 2 misdemeanor. See G.S.14-3(a) (offense without specific classification is considered Class 2 misdemeanor if maximum punishment is more than thirty days and not more than six months).)
Only convictions that are at least fifteen years old may be expunged under G.S. 15A-145.5, a far longer waiting period than for other expunctions under North Carolina law. The length of this waiting period limits the effect of an expunction on a later DWI prosecution. A fifteen-year-old DWI conviction cannot be used as the basis for a felony prosecution of habitual DWI or as a grossly aggravating factor in a misdemeanor DWI prosecution because the applicable statutes set a shorter “look-back” period for prior convictions. See G.S. 20-138.5 (for habitual DWI, look-back period is ten years); G.S. 20-179(c)(1) (for grossly aggravating factor, look-back period is seven years). An expunction would limit use of a prior DWI conviction as a regular aggravating factor, which affects whether a person receives a Level Three, Four, or Five punishment for a misdemeanor. See G.S. 20-179(d)(5) (for regular aggravating factor, prior DWI conviction may be more than seven years old).
G.S. 15A-145.5 also differs from most other expunction statutes in that it appears to give the court some discretion. Most expunction statutes provide that the court “shall” or “must” grant an expunction petition if the court finds that all of the statutory requirements have been met. G.S. 15A-145.5(c) states that the court “may” grant an expunction if the statutory requirements are satisfied. The statute does not specify the possible grounds for denial beyond the statutory requirements, but an order denying a petition must include a finding “as to the reason for the denial.”
A pending House bill, H 273, would revise G.S. 15A-145.5, among other statutes, to disallow expunctions of DWI convictions regardless of their age. The bill, which would apply to petitions filed or pending on or after July 1, 2015, has passed the House and is before the Senate. Two bills introduced in the Senate, S 362 and S 626, would shorten the waiting period to five years for expunction of a misdemeanor under G.S. 15A-145.5. The Senate bills would not change the current treatment of DWI convictions and thus would have the effect of allowing expunctions of DWI convictions before the end of the look-back periods discussed above. These bills did not pass the Senate before the crossover deadline but might be taken into account when the House bill is considered.
Another issue concerns the potential treatment of a DWI sentenced at Aggravated Level One, which carries a sentence of up to three years. See G.S. 20-179(f3). Although the maximum sentence is beyond the typical outer limit for misdemeanors (two years), current law may treat the offense as  a Class 1 misdemeanor. The pending bills do not differentiate among the different DWI levels.
In future posts I will address other common expunction questions as well as any changes enacted by the General Assembly.

Raleigh City Code v. State Statue Violation

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I am often asked about getting a speeding ticket reduced to a City Code Violation.  While this was common in years past, it is no longer.  Below is a great post by Shea Denning of the School of Government on this issue.

Suppose a North Carolina city adopts an ordinance establishing a local speed limit of 25 miles per hour for all city streets that are not otherwise marked. Signs are posted on city streets reflecting the 25 mile per hour limit. Absent this ordinance, state law would provide for a speed limit of thirty-five miles per hour inside the municipal corporate limits. The city’s municipal code provides that violations of its provisions are not governed by G.S. 14-4, which otherwise would render the violation of a local ordinance regulating traffic an infraction. The municipal code also states that speeding on a city street is punishable by a civil penalty of $75 and requires that payment be made to the town hall. A local law enforcement officer stops a car that is traveling 40 miles per hour on a city street. May the officer issue a civil citation to the driver, requiring payment of the $75 penalty?  May the officer cite the driver for speeding in violation of state law, an infraction?  May the officer choose between these two methods of enforcement?

Cut to the chase.  No.  Yes.  And no.  Those are my answers.  Here’s my explanation.
State law regulating speeding.  G.S. 20-141 prohibits various varieties of speeding on streets and highways within North Carolina.  G.S. 20-141(b) provides:

Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of the following speeds:
(1) Thirty-five miles per hour inside municipal corporate limits for all vehicles;
(2) Fifty-five miles per hour outside municipal corporate limits for all vehicles except for school buses and school activity buses.

G.S. 20-141(e) permits local authorities to “authorize by ordinance higher or lower speeds than those set out in subsection (b) upon all streets which are not part of the State highway system.” Such speed limits are effective “when appropriate signs giving notice thereof are erected upon the part of the streets affected.”
Violations of G.S. 20-141(b) are infractions punishable by a fine of not more than $100.  G.S. 20-176.
Thus, when a person drives a vehicle in excess of 35 miles per hour on a city street with a 35 mile per hour speed limit, that offense clearly is a violation of G.S. 20-141(b), and is punishable as an infraction. A person charged with such an infraction must be ordered to appear in district court, where, if found responsible, the person may be ordered to pay a fine of up to $100 and court costs. See G.S.15A-1114, 20-176.
A city may not adopt an ordinance prohibiting conduct identical to that constituting a crime or infraction under state law. G.S. 160-174(b)(6). Thus, it is clear that when the default speed limits under G.S. 20-141(b) apply, speeding in excess of those limits is an infraction under state law and may not also be defined as a local ordinance violation.
Some believe that a different rule applies when the city departs from the presumptive speed limits set forth in G.S. 20-141(b). They reason that G.S. 20-141(b) defines a crime “except as otherwise provided,” and that local ordinances authorizing higher or lower speeds adopted pursuant to G.S. 20-141(e) do otherwise provide. Thus, the argument goes, the violation when a person speeds over a locally established speed limit is an ordinance violation, rather than a violation of state law. As a result, the offender may properly be cited solely with violating the ordinance, which benefits the offender and, in some circumstances, the city. North Carolina’s Division of Motor Vehicles (DMV) does not maintain a record of a driver’s adjudication of responsibility for local ordinance violations as it does for records of violations of the State’s motor vehicle laws.  As a result, no license or insurance points are assessed for local ordinance violations. And when the ordinance violation is not punished as an infraction in district court, no court costs are assessed. Furthermore, if the violation is solely considered a local ordinance violation and not a violation of the State’s penal laws, then the city may keep the proceeds rather than remitting them to the local school board.
As I’ve already said, I don’t share this view. Though G.S. 20-141(b) is perhaps inartfully drafted, I understand it, when read in conjunction with G.S. 20-141(e), to prohibit all speeding that exceeds either the default or the posted speed limits.  And while G.S. 20-141(e) clearly authorizes local authorities to set their own speed limits, it does not authorize them to enact an ordinance prohibiting driving in excess of those speed limits as that conduct already is prohibited by G.S. 20-141(b). To interpret the provisions otherwise results in a hodgepodge enforcement scheme, where the nature of the violation and the applicable punishment depends upon whether a city happens to have departed from the default limitations in G.S. 20-141(b). On city streets where the speed limit is 35 miles per hour, only a state law infraction could be charged. On streets with a higher or lower speed limit, officers would have a choice as to whether to charge an infraction or an ordinance violation, with the latter charges inuring to the driver’s benefit as well as, perhaps, the city’s. Such inconsistent regulation strikes me as entirely inconsistent with the comprehensive scheme in Chapter 20 regulating the operation of vehicles, and, thus, unlikely to reflect the legislature’s intent.