Yes, Passing Stopped School Bus is Serious

www.kisslinglaw.com

 

Driver who killed 3 children at Indiana bus stop says she didn't see bus until it was too late.

 

The Indiana driver who police say plowed into four children at a bus stop, killing three of them, told authorities she didn't spot the school bus until it was too late.
Alyssa Shepherd, 24, was driving her pickup truck early on Tuesday morning when she struck a group of middle school students crossing the road to board their school bus.
Siblings Alivia Stahl, 9, and Xzavier and Mason Ingle, both 6, all died on the scene, while the fourth child, 11-year-old Maverik Lowe, suffered multiple broken bones and was airlifted to a hospital to undergo emergency surgery.
In a court hearing Wednesday, police disclosed what Shepherd, an eyewitness and the bus driver told them following the tragic accident, WTTV reports.

The female witness, who was driving behind Shepherd, estimated the suspect was driving around 45 mph at the time of the crash and said the bus was very visible, even though it was dark outside. The witness told police that she slowed down for the bus, but that Shepherd did not.
Shepherd reportedly told authorities that she was returning from driving her husband to work at the time of the accident and had three children in her truck at the time, including her little brother. She acknowledged she saw "something" with lights on the side of the road, but claimed she didn't recognize it was a school bus until it was too late to stop.
The bus driver told police he spotted Shepherd's truck and, believing it was a good distance away, he waved the children across the highway, according to WTTV. He said once he realized the truck was not slowing down, he honked his horn to try and signal the children to turn back.
According to authorities, the school bus followed proper protocol and had its stop-arm out at the time of the accident. All 50 states have laws that prohibit drivers from passing school buses when they are stopped and have their flashing lights on.
Shepherd was arrested following the crash and was charged with three counts of reckless homicide and one count of passing a school bus when arm signal device is extended, causing bodily injury. She has been released from jail on a $15,000 bond and will appear in court on Nov. 13, WSBT reports.

Speed Kills Young Drivers

www.kisslinglaw.com

More examples of teens being killed on our roads due to high speeds.

Raleigh, N.C. — The Cardinal Gibbons High School student who died when her car ran off Possum Track Road and struck several trees earlier this week was traveling 95 mph, according to troopers.
Madeline Grace Shook, 16, of Raleigh, was traveling north on Possum Track Road, in northern Wake County, when she crashed while traveling approximately 95 mph in a 45 mph zone. She died at the scene. She was the only occupant in the vehicle.
Shook was on the school's track team and is remembered by teammates as a bright light, a go-getter and a voice of reassurance.
"She just was always encouraging us to do our best and to run to our full potential," Marianne Bahna said.
Cardinal Gibbons Principal Jason Curtis said he remembers Shook as a smart student and competitive athlete.
“As an educator, how can I best care for them and love them and support them just as their parents have asked us to,” Curtis said of grieving students. “What goes through my head is we, the adults, need to model for them the appropriate response.

Speeding in School Zone

www.kisslinglaw.com

I always like to post a reminder at this time of year about speeding in school zones.  Below is the NC statute on the issue.  Remember that even though traditional calendar schools are out, there are still year round schools that are still in school and you need to watch for those.

Speeding in a school zone carries a $250 fine and the less than 10 MPH over the limit rule that would prevent a speeding ticket from going on your insurance does not apply to speeding in school zones.  The only way to keep this ticket off your insurance is with a Prayer for Judgment.

§ 20-141.1.  Speed limits in school zones.

The Board of Transportation or local authorities within their respective jurisdictions may, by ordinance, set speed limits lower than those designated in G.S. 20-141 for areas adjacent to or near a public, private or parochial school. Limits set pursuant to this section shall become effective when signs are erected giving notice of the school zone, the authorized speed limit, and the days and hours when the lower limit is effective, or by erecting signs giving notice of the school zone, the authorized speed limit and which indicate the days and hours the lower limit is effective by an electronic flasher operated with a time clock. Limits set pursuant to this section may be enforced only on days when school is in session, and no speed limit below 20 miles per hour may be set under the authority of this section. A person who drives a motor vehicle in a school zone at a speed greater than the speed limit set and posted under this section is responsible for an infraction and is required to pay a penalty of two hundred fifty dollars ($250.00).  

Prayer for Judgment Continued

www.kisslinglaw.com

Great blog about PJC (Prayer for Judgment Continued)

Thanks to the NC SOG for the post.  A lot of people misuse the PJC and think its uses are unlimited as is their number.

Judges can continue prayer for judgment in any case. Except when they can’t.

In North Carolina, when a defendant is convicted, either after a trial or by guilty plea, the court is generally viewed as having the authority to continue prayer for judgment in the case. A prayer for judgment continued (PJC) can serve different purposes. It can be a mere continuance of sentencing in the case, allowing the court to obtain additional information about the defendant before entering judgment. It can take on the character of a suspended sentence, with the PJC set to continue “from term to term” for some specified period on condition of the defendant’s good behavior, with the understanding that the State will pray judgment and the court will sentence the defendant in response to any reported misconduct. Often, however, it is everyone’s understanding that a PJC will be the last thing that happens in a case—an exercise of judicial mercy that will leave the defendant with a conviction but no punishment for it. I sometimes refer to that last type of PJC as a dispositional PJC. Practice on all types of PJCs varies across the State.

The precise legal underpinnings of the dispositional PJC are hard to pinpoint. I walked through some of the history of PJCs in this post, noting that the modern appellate courts generally approve of a trial judge’s broad authority to continue prayer for judgment. See State v. Van Trusell, 170 N.C. App. 33 (2005) (“North Carolina courts have the power to continue prayer for judgment . . . .”). If you look carefully at the cases cited in support of that authority, they are mostly talking about a probation-like, term-to-term type of PJC. But suffice it to say that at this point, the baseline rule is that a judge can continue prayer for judgment in any case unless some legal authority says otherwise.

There are a small number of legal authorities that say otherwise.

In a few circumstances, PJCs are prohibited by statute.

Under G.S. 20-141(p), a driver charged with speeding in excess of 25 miles per hour shall be ineligible for a PJC.

Under G.S. 14-205.1(a), any defendant who solicits another for prostitution—be it a first offense, a second or subsequent offense, an offense against a minor, or an offense against a severely or profoundly mentally disabled person—shall not be eligible for a PJC under any circumstances.

Under G.S. 20-217(e), a defendant who passes a stopped school bus shall not receive a PJC under any circumstances.

In one important circumstance, a dispositional PJC is prohibited by case law. As Shea discusses in The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina (p. 145–46), our the appellate courts have interpreted the sentencing provisions for impaired driving in G.S. 20-179 to be a “mandatory” sentencing regime that prohibits dispositional PJCs in DWI cases. In re Greene, 297 N.C. 305 (1979) (“We hold that the Courts at North Carolina do not have an ‘inherent’ power to continue prayer for judgment on conditions or to suspend sentence where the sentence is made mandatory by the General Assembly.”). Now, one could argue that all of North Carolina’s sentencing laws, not just G.S. 20-179, are “mandatory,” but cases like Van Trusell show that the Greene rule has been limited to impaired driving.

In 2012, the General Assembly enacted a final statutory limit on PJCs in G.S. 15A-1331.2. Under that law, the court shall not dispose of any Class B1–E felony by ordering a PJC that exceeds 12 months. Any PJC ordered in those cases must include as a condition that the State shall pray judgment within some specific time not to exceed 12 months. Once that time has expired, the court must enter a final judgment, unless it finds that it is in the interest of justice to continue the order for some additional time not to exceed 12 more months. The court may not extend the PJC beyond that one additional 12-month period.

This relatively new rule obviously precludes a dispositional PJC for any serious felony. That’s not something you hear about very often in any event, but it used to happen from time to time.

The parties should also be aware of this requirement when a defendant in a serious felony case is granted a PJC to allow him or her time to demonstrate good behavior before sentencing. Sometimes 24 months will not be long enough for the defendant to do whatever he or she agreed to do. There is some argument that the law applies only to truly dispositional PJCs (the statute uses the word “dispose”), and not to mere delays in sentencing. But until we have case law interpreting the provision, the new timeline is something you may wish to take into account.

NC Seat Belt Law

www.kisslinglaw.com

Always good to review the NC seat belt ticket law.  In addition to the great article below, it is good to know the following.

1.  Passenger seat belt violation by itself is not a reason to stop a vehicle by law enforcement.
2.  There are no driving points or insurance points for a seat belt charge.  However, there are drivers license points for an underage seat belt charge.
3.  Failure to pay a seat belt ticket or go to court can result in  a license suspension by DMV.
4.  Seat belt must be properly fastened.  This means you cannot have the shoulder belt under your arm.  If you have a medical condition that prevents you from wearing the seat belt properly, you need a note from your doctor.

§ 20-135.2A.  (See Editor's note) Seat belt use mandatory.

(a)        Except as otherwise provided in G.S. 20-137.1, each occupant of a motor vehicle manufactured with seat belts shall have a seatbelt properly fastened about his or her body at all times when the vehicle is in forward motion on a street or highway in this State.

(b)        Repealed by Session Laws 2006-140, s. 1, effective December 1, 2006.

(c)        This section shall not apply to any of the following:

(1)        A driver or occupant of a noncommercial motor vehicle with a medical or physical condition that prevents appropriate restraint by a safety belt or with a professionally certified mental phobia against the wearing of vehicle restraints.

(2)        A motor vehicle operated by a rural letter carrier of the United States Postal Service while performing duties as a rural letter carrier and a motor vehicle operated by a newspaper delivery person while actually engaged in delivery of newspapers along the person's specified route.

(3)        A driver or passenger frequently stopping and leaving the vehicle or delivering property from the vehicle if the speed of the vehicle between stops does not exceed 20 miles per hour.

(4)        Any vehicle registered and licensed as a property-carrying vehicle in accordance with G.S. 20-88, while being used for agricultural purposes in intrastate commerce.

(5)        A motor vehicle not required to be equipped with seat safety belts under federal law.

(6)        Any occupant of a motor home, as defined in G.S. 20-4.01(27)k, other than the driver and front seat passengers.

(7)        Any occupant, while in the custody of a law enforcement officer, being transported in the backseat of a law enforcement vehicle.

(8)        A passenger of a residential garbage or recycling truck while the truck is operating during collection rounds.

(d)       Evidence of failure to wear a seat belt shall not be admissible in any criminal or civil trial, action, or proceeding except in an action based on a violation of this section or as justification for the stop of a vehicle or detention of a vehicle operator and passengers.

(d1)     Failure of a rear seat occupant of a vehicle to wear a seat belt shall not be justification for the stop of a vehicle.

(e)        Any driver or front seat passenger who fails to wear a seat belt as required by this section shall have committed an infraction and shall pay a penalty of twenty-five dollars and fifty cents ($25.50) plus the following court costs: the General Court of Justice fee provided for in G.S. 7A-304(a)(4), the telephone facilities fee provided for in G.S. 7A-304(a)(2a), and the law enforcement training and certification fee provided for in G.S. 7A-304(a)(3b). Any rear seat occupant of a vehicle who fails to wear a seat belt as required by this section shall have committed an infraction and shall pay a penalty of ten dollars ($10.00) and no court costs. Court costs assessed under this section are for the support of the General Court of Justice and shall be remitted to the State Treasurer. Conviction of an infraction under this section has no other consequence.

(f)        No drivers license points or insurance surcharge shall be assessed on account of violation of this section.

(g)        The Commissioner of Motor Vehicles and the Department of Public Instruction shall incorporate in driver education programs and driver licensing programs instructions designed to encourage compliance with this section as an important means of reducing the severity of injury to the users of restraint devices and on the requirements and penalties specified in this law.

20-137.1.  Child restraint systems required.

(a)        Every driver who is transporting one or more passengers of less than 16 years of age shall have all such passengers properly secured in a child passenger restraint system or seat belt which meets federal standards applicable at the time of its manufacture.

(a1)      A child less than eight years of age and less than 80 pounds in weight shall be properly secured in a weight-appropriate child passenger restraint system. In vehicles equipped with an active passenger-side front air bag, if the vehicle has a rear seat, a child less than five years of age and less than 40 pounds in weight shall be properly secured in a rear seat, unless the child restraint system is designed for use with air bags. If no seating position equipped with a lap and shoulder belt to properly secure the weight-appropriate child passenger restraint system is available, a child less than eight years of age and between 40 and 80 pounds may be restrained by a properly fitted lap belt only.

(b)        The provisions of this section shall not apply: (i) to ambulances or other emergency vehicles; (ii) if all seating positions equipped with child passenger restraint systems or seat belts are occupied; or (iii) to vehicles which are not required by federal law or regulation to be equipped with seat belts.

(c)        Any driver found responsible for a violation of this section may be punished by a penalty not to exceed twenty-five dollars ($25.00), even when more than one child less than 16 years of age was not properly secured in a restraint system. No driver charged under this section for failure to have a child under eight years of age properly secured in a restraint system shall be convicted if he produces at the time of his trial proof satisfactory to the court that he has subsequently acquired an approved child passenger restraint system for a vehicle in which the child is normally transported.

(d)       A violation of this section shall have all of the following consequences:

(1)        Two drivers license points shall be assessed pursuant to G.S. 20-16.

(2)        No insurance points shall be assessed.

(3)        The violation shall not constitute negligence per se or contributory negligence per se.

(4)        The violation shall not be evidence of negligence or contributory negligence. (1981, c. 804, ss. 1, 4, 5; 1985, c. 218; 1993 (Reg. Sess., 1994), c. 748, s. 1; 1999-183, ss. 6, 7; 2000-117, s. 1; 2004-191, ss. 1, 2; 2007-6, s. 1.)

RED LIGHT CAMERAS

www.kisslinglaw.com

Do we really need to trick drivers into breaking the law just to raise revenue?

As I drive through Downtown Raleigh every morning on the way to court, I go through an intersection with a red light camera.  While the city has not fallen into the trap of shortening the yellow light, what I have noticed that they have done is shorten the length of the green light so that the light at that intersection is not synchronized with the other lights.  As I go how the street at the speed limit, I will hit each intersection with the same amount of time on the crosswalk sign at each intersection until I hit the intersection with the camera.  I always get caught at that one.  I believe a lot of people end up running that one because the expect it to be green like the rest of them. Not so.

Below is a great article about how the people in one town fought back and won when their town started using red light cameras to raise revenue.

A small Ohio town that lived by the red light camera could soon die by it, after a federal court ruled the speed trap has to pay back more than $3 million in automated speeding tickets.

The case of New Miami, population 2,321, highlights the controversy behind the tickets, which make stoplight-running motorists see red, but help keep the budgets of cities and towns in the black. New Miami will almost certainly go bankrupt if the Supreme Court doesn’t reverse a lower court’s ruling and spare it from refunding tens of thousands of tickets at $180 apiece plus interest.

“The village enacted this unconstitutional scheme primarily as a money making venture,” Josh Engel, the lawyer representing the plaintiffs in the New Miami case, told Fox News. “They increased their spending significantly after the scheme was put in place and it was basically used to fill holes in their budget that would traditionally have come from raising taxes.”

The case of New Miami is seen by many drivers across the country – including numerous lawmakers and lawyers – as the epitome of municipalities abusing their power by setting up speed traps and red light cameras in an attempt, not to make roadways safer, but to line their coffers.

“As with most issues there are elements of truth on both sides,” Bill Seitz, a Republican state representative from Ohio, told Fox News. “But many of these jurisdictions are using these tickets as revenue enhancements that ticket people for only minor infractions.”

Seitz is currently working to push a bill through the Ohio statehouse that would require cities to file all traffic camera cases in municipal court and would reduce state funding to cities by the same amount cities collect in traffic camera revenue.

The Ohio representative, who himself was caught on camera rolling through a red light in Columbus, added that in 2006 and 2014 lawmakers approved restrictions on photo enforcement cameras and that limits or bands on the devices enjoy wide support in cities like Cincinnati and Cleveland.

The current animosity directed at the cameras marks a shift in public sentiment toward the cameras.

While it is tough to pinpoint the national pulse as most studies are conducted at a state and regional level, but it appears that there are a growing number of areas who are starting to question whether the speed camera programs are effective or even constitutional.

Seven states are currently considering legislation to prohibit red light and speed camera use amid concerns that they are ripe for abuse and IIHS study found that the number of red light cameras in the U.S. dropped to 467 in 2015 from its peak of 553 in 2012.

“It’s really a money making venture,” Israel Klein, a lawyer in New York City, told Fox News. “They’re raking in the dollars and it’s an extreme abuse of power.”

Klein earlier this year filed a class action lawsuit against the city that argues that speed camera tickets are invalid and violate New York state law as the city failed to file all of the required paperwork with the court before allowing a private contractor to drop the photo ticket in the mail. New York City’s 2018 budget expects to haul in $119 million in photo enforcement fines.

“City officials don’t care about the law as long as they’re making money,” Klein added.

Proponents of the cameras, however, argue that they significantly lower the number of accidents on the road as both speeding and going through red lights are two of the biggest causes of car crashes in the country, according to the U.S. Department of Transportation.

Seven states are currently considering legislation to prohibit red light and speed camera use amid concerns that they are ripe for abuse and IIHS study found that the number of red light cameras in the U.S. dropped to 467 in 2015 from its peak of 553 in 2012.

“It’s really a money making venture,” Israel Klein, a lawyer in New York City, told Fox News. “They’re raking in the dollars and it’s an extreme abuse of power.”

Klein earlier this year filed a class action lawsuit against the city that argues that speed camera tickets are invalid and violate New York state law as the city failed to file all of the required paperwork with the court before allowing a private contractor to drop the photo ticket in the mail. New York City’s 2018 budget expects to haul in $119 million in photo enforcement fines.

“City officials don’t care about the law as long as they’re making money,” Klein added.

Proponents of the cameras, however, argue that they significantly lower the number of accidents on the road as both speeding and going through red lights are two of the biggest causes of car crashes in the country, according to the U.S. Department of Transportation.

By Andrew O'Reilly | Fox News