Blocking Intersection

www.kisslinglaw.com

In North Carolina, it is illegal to pull into an intersection if you cannot get all the way through the intersection.  The exact statute reads as follows:

§ 20-142.5. Stop when traffic obstructed.

No driver shall enter an intersection or a marked crosswalk or drive onto any railroad grade crossing unless there is sufficient space on the other side of the intersection, crosswalk, or railroad grade crossing to accommodate the vehicle he is operating without obstructing the

passage of other vehicles, pedestrians, or railroad trains, notwithstanding the indication of any traffic control signal to proceed. Any person who violates any provision of this section shall be guilty of an infraction and punished in accordance with G.S. 20-176. Violation of this section shall not constitute negligence per se.  An employer who knowingly allows, requires, permits, or otherwise authorizes a driver of a commercial motor vehicle to violate this section shall be guilty of an infraction. Such employer will also be subject to a civil penalty under G.S. 20-37.21. (1991, c. 368, s. 1; 2005-349, s. 16.)

What You Wear To Court Matters

www.kisslinglaw.com

I have been telling my clients this for years.  Below is a great review on what to wear to court and how it affect sentencing.

Does what a defendant wears to court impact his or her sentence?

We’ve written about dress and appearance a lot on this blog. Jeff wrote here about defendants wearing eyeglasses and dress clothes and covering up tattoos in front of a jury, and here about a judge’s authority to set rules about what people can wear to court. He talked about juror attire here. Shea tackled dress standards for lawyers—particularly women—here.

I’m not exactly breaking any news to say that appearances matter in the criminal justice system. For defendants. For lawyers. For probation officers (who have considered transitioning from business attire to a uniform, by the way). For everyone—just as in all walks of life, I suppose.

As for defendants, the due process and statutory rules about clothing at trial mostly relate to wearing jail or prison garb, and they’re focused on protecting the defendant’s right to a fair trial before a jury. See Estelle v. Williams, 425 U.S. 501, 504–05 (1976) (“Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. . . . Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial.”); G.S. 15-176 (“It shall be unlawful for any sheriff, jailer or other officer to require any person imprisoned in jail to appear in any court for trial [in superior court] dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian’s dress.”).

But the issue surely goes beyond the jury. Defendants’ dress and appearance before the judge at sentencing is something we talk about every year in our annual sentencing seminar at the School of Government (the one created and led by Jim Drennan for over 20 years). And every year, court officials acknowledge the ways defendants’ attire can affect their thinking—for better or for worse. Some of their reactions are straightforward, but some are really subtle. We talk about separating our pet peeves and preferences (some of which might stem from socioeconomic, generational, or cultural differences) from issues that convey information truly relevant to the purposes of sentencing.

Some general rules of thumb emerge. If the court has posted rules about attire, and the defendant doesn’t follow them, that’s bad. (I was just at a courthouse yesterday, and the most prominent signs on the courtroom door were those requiring shirts to be tucked in.) There is the occasional anecdote about a defendant wearing a t-shirt with a marijuana leaf to his drug crime sentencing. Those choices can be received as a signal that the defendant isn’t taking the proceedings seriously. And that can lead to a harsher sentence, to “get the defendant’s attention.” Some will say things like “dress like you’re going to church,” but most are very welcoming of defendants dressed like they’re going to work—whether it’s a business suit, medical scrubs, or a mechanic’s uniform. I’d be interested to hear any practical advice our readers have to offer.

Shooting Deaths v. Highway Deaths

www.kisslinglaw.com

Yesterday, roughly 2000 students walked out of Green Hope High School in Cary to demand tougher gun laws.  See article below from the News and Observer.  In the US, approximately 6 teens between the ages of 16 and 19 are killed every day.  That means there were more teens killed in the last 3 days then in the shooting in Florida.  In addition, alcohol kills 3 times more people than guns. 

If these statistics are true, why are the students not demanding lowing of speed limits, and a higher age to get a license and purchase alcohol?

By T. Keung Hui
khui@newsobserver.com

 

February 28, 2018 03:29 PM

                           

CARY

More than 2,000 students walked out of Green Hope High School on Wednesday to demand political changes to try to end school gun violence following the recent Florida school shooting massacre.
The majority of Green Hope’s 2,900 students walked out of the Cary school to gather on the football field and hear from fellow students and elected officials who called for changes such as stronger gun-control laws. Some of the most impassioned pleas Wednesday during the 75-minute walkout came from two Green Hope students who used to attend Marjory Stoneman Douglas High School in Parkland, Florida, where 17 people were killed on Feb. 14.
“This is not a political issue that we should be divided on, but one that should unite us to strive towards a common goal,” said Green Hope student Deb Bhattacharya, who fought back tears as she recalled her former Florida classmates. “Never again should any school go through the pain that Parkland is facing still.

“We must spark that change. We must push for reform and be a part of something bigger than ourselves.”

Read more here: http://www.newsobserver.com/news/local/education/article202673584.html#storylink=cpy

 

Read more here: http://www.newsobserver.com/news/local/education/article202673584.html#storylink=cpy

More school walkouts are expected in Wake County and throughout the nation. The Women’s March Network has called for students around the country to walk out on March 14 for 17 minutes – one minute for each person killed at Stoneman Douglas.

Students from at least two Wake schools, Apex High and Apex Friendship High, have announced they plan walkouts on March 14. With students at many other schools also expected to hold events, Wake school officials are telling students they won’t be punished for the protests if they work ahead of time with their principals to make sure the events are safe.

On Wednesday, Green Hope staff also left the building to monitor the students, who were holding signs with slogans such as “We Demand Change.” Students recited multiple chants: “Two, four, six, eight, Congress must legislate!” “How strong! Douglas strong!” “Spread love, not hate, we just want to graduate.”

“People I knew were killed all because some animal with a gun thought he was entitled to take lives,” said Green Hope student Megan Sharma, one of the former Stoneman Douglas students. “I have had enough. I cannot let another community go through the devastation that me and my community have gone through.

“This violence needs to stop. It has no place in schools.”

Some conservatives have criticized Wake’s actions, questioning the district’s insistence that it’s not taking a political position on issues such as gun control by working with students holding the events.

“This absolutely is about politics,” tweeted Michael Pritt of Wake Forest. “@WCPSS changed their conduct policy, sent letters, made phone calls, and even had reporters push for one agenda & exactly this type of behavior #WalksLikeADuck.”

Organizers have insisted the event is apolitical, with Green Hope senior Peyton Barish tweeting that “we have attempted to contact almost every Republican representative in the area, and so lack of support is not due to lack of trying.”

During the event, students read letters from Democratic elected officials, including U.S. Rep. David Price and Gov. Roy Cooper.

The event also attracted three Democratic elected officials: Sen. Jay Chaudhuri, Morrisville Mayor TJ Cawley and Morrisville Councilman Steve Rao. Chaudhuri drew applause when he called for more school nurses and school psychologists, gun violence restraining orders and universal background checks.

All three politicians also urged the students to stay involved in the political process, especially when they turn 18 and can vote.

“We need the voices of students in the General Assembly,” Chaudhuri said. “We need your voices lifted so we can make sure that something like Parkland never ever happens in Wake County or in North Carolina.”

The rally ended with Raina Lee, Green Hope’s sophomore class president, telling students they would receive a contact list of North Carolina elected officials. Lee said the students need to contact their elected officials, especially “the ones who don’t support us.”

“And the ones that don’t protect us, the ones that aren’t doing their jobs, we’ll vote them out,” Lee said to cheers. “We’ll vote them out and keep voting them out until someone makes a change.

“So to all people who have the power to do something, our eyes are on you. We will be watching and we will be waiting. Enough is enough.”

T. Keung Hui:

IS IT A CRIME TO GIVE A POLICE OFFICE THE FINGER

www.kisslinglaw.com

Mark May, a self-employed carpet cleaner from rural western Indiana, was driving his car through the town of Terre Haute on Aug. 17 when he spotted an Indiana State Police patrol car zooming up from behind.

As May slowed at an intersection, the police vehicle cut in front of him — too aggressively, May thought, according to his federal lawsuit. If May had pulled that maneuver in front of a police officer, he would have earned a ticket, he believed. May correctly guessed that the trooper was pulling ahead to stop another motorist, and as he passed the patrol car, he signaled his displeasure.

He waved a middle-finger in the trooper’s direction.

The universal single-digit gesture of contempt is now the center of a federal lawsuit May filed last week against the man behind the patrol car’s wheel, Indiana State Police Master Trooper Matt Ames. According to the legal complaint, after seeing May’s middle-finger, Ames went after the driver, issuing him a ticket for “provocation.”

But May’s middle finger is his constitutional right, his attorneys from the American Civil Liberties Union argue.

“While perhaps ill advised, Mr. May’s gesture, which in no way interfered with the Master Trooper’s lawful activities, was fully protected by the First Amendment,” the complaint states. “The traffic stop was unreasonable under the circumstances and was made without probable cause.”

An Indiana State Police public information officer did not immediately return an email for comment on the lawsuit.

May’s situation, however, is not unique. The same month May was pulled over in Indiana, the ACLU of Louisiana complained to the Louisiana State Police after an officer from the agency pulled over and ticketed a finger-flashing driver on the Bayou State’s Interstate 20. A local prosecutor declined to enforce the ticket, and a State Police spokesman later told the Associated Press the agency “has tremendous respect for the First Amendment even when the citizens we serve choose to be vulgar and disrespectful.”

Vulgar as it is, there are lots of vulgar people. On any given day, no doubt, one or more of them is giving the finger to an officer. And the gesture — which actually dates back to the ancient Greeks — has already been the subject of previous litigation in the U.S. courts.

In 2006, a St. Johnsville, N.Y., man named John Swartz was riding in his car with his wife when he spotted some police officers using a radar gun at an intersection. Swartz flashed his finger, and he was later arrested for disorderly conduct.

The charges were later dropped, but Swartz sued the officers for violating his civil rights. The case worked its way to the U.S. Court of Appeals for the 2nd Circuit. In 2012, the court ruled for Swartz, stating the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

According to May’s lawsuit filed in the Southern District of Indiana, after the gesture, Ames pursued May in his patrol car, turning on his flashing lights to signal a stop. May pulled into a parking lot. Ames followed.

“The Master Trooper exited his car and told Mr. May that it was illegal to ‘give the finger’ to a law enforcement officer,” the complaint says. “The Master Trooper was quite angry and loud and Mr. May was concerned about the Master Trooper’s demeanor.”

Ames issued May a ticket for “provocation.” He also issued a warning ticket to May for not using his turn signal as he entered the lot.

The “provocation” offense, according to the Indiana Criminal Code, is issued when a person “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery” and is punishable with a $500 fine, the Indianapolis Star reported. May fought the ticket at a trial in  Terre Haute City Court. “At the trial . . . Master Trooper Ames admitted that the sole reason he stopped Mr. May was because of his gesture,” the lawsuit states.

May was convicted.

But under Indiana law, the defendant had the opportunity for a fresh review with the Vigo County Superior Court. The higher court sided with May, tossing out the conviction. The county prosecutor did not refile the case. The charges were dismissed with prejudice.

Although May won his legal battle in the criminal court, the court appearances cost him two days of work, the lawsuit alleges. He’s suing for unspecified damages.

“Mark May’s gesture to Master Trooper Ames was expressive conduct that was fully protected by the First Amendment to the United States Constitution,” his lawsuit says. “Master Trooper Ames had no grounds whatsoever to initiate the stop of Mr. May and the traffic stop represents a seizure implicating the Fourth Amendment to the United States Constitution.”

Thank you to the Washington Post for the article

Does Lower Speed Limit Save Gas or Lives?

 www.kisslinglaw.com

 

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

By Fredrick Kunkle

I had a friend in college who saw the good in most things despite evidence to the contrary. She believed passionately that the federal government had imposed a 55 mph speed limit in the 1970s to save lives. She lost the bet – and maybe a little faith in government? – when she learned that it had been done to save gas.
So here we are in 2016, and the National Safety Council has issued a report saying that traffic fatalities have risen dramatically for the second consecutive year – an estimated 9 percent more over just the first six months this year. It seems almost quaint these days to think the government would do anything to change that, unless there’s another oil embargo.
The council, citing preliminary estimates, says more than 19,000 people have been killed on the nation’s highways since January, compared with the same period a year earlier. This a figure that’s nearly 20 percent higher than the number two years earlier.
Deborah A.P. Hersman, president and chief executive of the council, said that the number of annual traffic fatalities could exceed 40,000 for the first time since 2007. Think about that before you head out this Labor Day weekend.The jump in fatalities can be attributed at least in part to cheap gas and a decent economy, the council says. Average gas prices are 16 percent lower this year, compared with 2015, and the mileage people have driven is up 3.3 percent. More people are dying because people are putting in more time on the road.

But that’s half the story. Part of the reason for the increase in traffic deaths is also that speed limits have gone up. Part of the reason is the smartphone in your hand. Part of the reason is government inaction. Or apathy.
“The carnage on our roadways should light a fire under our legislators, regulators and law enforcement to do even more,” Hersman said. “Our complacency is killing us.”
Keep in mind that the increase in traffic deaths comes despite advances in the safety design of vehicles and roadways, increased use of safety belts and success in the fight against drunk driving. Thanks to educational campaigns and serious legal and financial consequences for driving and drinking, the percentage of alcohol-related deaths has dropped from about 50 percent of fatal crashes to about 30 percent, Hersman said.
But higher speed limits are here to stay as long as we tolerate the death toll. And little has been done to combat the habit of texting and driving despite mounting evidence that this is killing people.
Hersman, who chaired the National Transportation Safety Board from 2009 to 2014, told me she has little doubt that the increase in traffic deaths can be attributed to the distracted driving and the ubiquitous use of smartphones and other technology in people’s cars. But she said the data do not yet show a definitive link, perhaps because crashes are reported in a way that doesn’t capture the impact of distracted driving.
For one thing, the driver might not be around to admit he was texting. Or he might lie. Hersman said she saw that in several high-profile fatal accidents when she was at the NTSB.
But the evidence that distracted driving has gotten out of control – especially from talking or texting with a smartphone – is all around us. It’s in surveys where people say they hate that other people text and drive but admit to doing the same. It’s in over-the-road research where drivers are monitored as they travel. It’s in roadside traffic counts where researchers observe passing vehicles. It’s in news accounts of fatal crashes and in lawsuits. It’s right before our eyes, if you’ll take a moment to lift your head from your phone.
“We know that it’s very prevalent,” Hersman said. “We know that the people that we’re friends with, our family, people we love, we know people are doing this even though they shouldn’t be. And our surveys bear that out.”

The carnage on our roadways should light a fire under our legislators, regulators and law enforcement to do even more. Our complacency is killing us.

But neither automotive manufacturers, the smartphone and wireless industry, nor the federal government gives a hoot. It’s probably because cracking down on the use of electronic devices behind the wheel would mean making a lot of people mad or putting a dent in all that money flowing through the online economy. Gotta order those cosmetics and vitamin supplements, ya know. Gotta do some FaceTime on the morning commute. Gotta Pokmon Go.
Statistics also show how government can have an impact on lowering traffic deaths – inadvertently sometimes.
In 1973, an oil embargo by the OPEC states delivered a devastating blow to the United States. The nation realized perhaps for the first time (but not the last) that it had a gas-guzzling problem. President Nixon signed federal legislation that incentivized the states to lower speed limits to 55 mph to conserve fuel. Only after the fact did it become clear that those lower speeds led to fewer highway fatalities. Despite warnings at the time that repealing those limits would lead to more highway fatalities, President Bill Clinton repealed those speed limits in 1995.
Since then, 38 states have raised the speed limit to 70 mph or higher. Some states, including Montana, Nevada, South Dakota, Utah and Wyoming have boosted the maximum speed to 80 mph.
The NCSL, citing a study by the Insurance Institute for Highway Safety, says an additional 33,000 people have died because of those higher speed limits in the past 20 years. That’s nearly as many Americans as were killed in the Korean War.
But never mind. We’ll just have to wait for OPEC to cut off the oil again. Or a global shortage of smartphones.
The Washington Post

Read more here: http://www.newsobserver.com/opinion/op-ed/article98136157.html#storylink=cpy

Cause of High Speed Accidents

www.kisslinglaw.com

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

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

1. Speeding
2. Driver Distraction
3. Alcohol Consumption

What driver behavior is associated with the most injuries resulting from vehicle crashes in North Carolina?

1. Speeding
2. Driver Distraction
3. Alcohol Consumption

What driver behavior is associated with the most vehicle crash fatalities in North Carolina?

1. Speeding
2. Driver Distraction
3. Alcohol Consumption

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

Search of Vehicle based soley on ordor of marijuana

www.kisslinglaw.com


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And there's something else.

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

Monday's ruling most immediately affects two individuals.

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

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

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

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

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

New Moped rules

www.kisslinglaw.com

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

Laws governing the operation of mopeds have changed significantly in recent years. Mopeds now must be registered before they may be driven on state roadways, and the owner of the moped must have insurance.  An overview of the current legal requirements for moped operation is set forth below. 
First, what’s a moped?  For years, the term “moped,” has not been separately defined in the motor vehicle statutes. Instead, the term is defined in the State’s tax statutes as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 105-164.3. Effective December 1, 2016, however, Chapter 20 will have its own definition, which will be incorporated into the tax statutes by cross reference.
New G.S. 20-4.01(27)d1 defines a moped as “[a] vehicle, other than a motor-driven bicycle or electric assisted bicycle, that has two or three wheels, no external shifting device, a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface. The motor may be powered by electricity, alternative fuel, motor fuel, or a combination of each.” S.L. 2016-90 (H 959), section 13.(a).
The registration requirement.  G.S. 20-53.4, effective July 1, 2015, requires that mopeds be registered before being driven on the streets or highways of the state. To be registered, the moped must have a manufacturer’s certificate of origin and must be designed and manufactured for use on highways or public vehicular areas.
The fee for registering a moped is the same as for registering a motorcycle: $24.  G.S. 20-87(6).
Driving an unregistered moped on a street or allowing a moped you own to be so driven is a Class 2 misdemeanor. G.S. 20-111(1). The same is true for failing to display a current registration plate on a moped. Id.
The insurance requirement.  G.S. 20-309(a) requires, as of July 1, 2016, that owners of mopeds provide proof of financial responsibility before a moped may be registered and that they maintain such a policy throughout the registration period. Legislation was proposed in 2016 to delay this effective date, but was not enacted. S 821, section 46.(a).
Moped drivers must be at least 16 years old. G.S. 20-10.1 makes it unlawful for a person under the age of 16 to operate a moped upon a street or public vehicular area. Violation of this provision is a Class 2 misdemeanor. G.S. 20-35.
Moped drivers are not required to have a driver’s license. While the North Carolina Department of Transportation has recommended that driver’s licenses be required for the operation of mopeds, the General Assembly has not acted on that recommendation.

Red Light Tickets

www.kisslinglaw.com

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

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