Speeding to Elude Arrest

 
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Speeding to Elude is one of the fastest ways to become a felon while doing nothing other than speeding.  If you are charged with the felony, you need to make sure you get it reduced to the misdemeanor.  Either charge carries a license suspension.

§ 20‑141.5.  Speeding to elude arrest; seizure and sale of vehicles.

(a)        It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.

(b)        If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.

(1)        Speeding in excess of 15 miles per hour over the legal speed limit.

(2)        Gross impairment of the person's faculties while driving due to:

a.         Consumption of an impairing substance; or

b.         A blood alcohol concentration of 0.14 or more within a relevant time after the driving.

(3)        Reckless driving as proscribed by G.S. 20‑140.

(4)        Negligent driving leading to an accident causing:

a.         Property damage in excess of one thousand dollars ($1,000); or

b.         Personal injury.

(5)        Driving when the person's drivers license is revoked.

(6)        Driving in excess of the posted speed limit, during the days and hours when the posted limit is in effect, on school property or in an area designated as a school zone pursuant to G.S. 20‑141.1, or in a highway work zone as defined in G.S. 20‑141(j2).

(7)        Passing a stopped school bus as proscribed by G.S. 20‑217.

(8)        Driving with a child under 12 years of age in the vehicle.

(b1)      When a violation of subsection (a) of this section is the proximate cause of the death of any person, the person violating subsection (a) of this section shall be guilty of a Class H felony. When a violation of subsection (b) of this section is the proximate cause of the death of any person, the person violating subsection (b) of this section shall be guilty of a Class E felony.

(c)        Whenever evidence is presented in any court or administrative hearing of the fact that a vehicle was operated in violation of this section, it shall be prima facie evidence that the vehicle was operated by the person in whose name the vehicle was registered at the time of the violation, according to the Division's records. If the vehicle is rented, then proof of that rental shall be prima facie evidence that the vehicle was operated by the renter of the vehicle at the time of the violation.

(d)       The Division shall suspend, for up to one year, the drivers license of any person convicted of a misdemeanor under this section. The Division shall revoke, for two years, the drivers license of any person convicted of a felony under this section if the person was convicted on the basis of the presence of two of the aggravating factors listed in subsection (b) of this section. The Division shall revoke, for three years, the drivers license of any person convicted of a felony under this section if the person was convicted on the basis of the presence of three or more aggravating factors listed in subsection (b) of this section. In the case of a first felony conviction under this section where only two aggravating factors were present, the licensee may apply to the sentencing court for a limited driving privilege after a period of 12 months of revocation, provided the operator's license has not also been revoked or suspended under any other provision of law. A limited driving privilege issued under this subsection shall be valid for the period of revocation remaining in the same manner and under the terms and conditions prescribed in G.S. 20‑16.1(b). If the person's license is revoked under any other statute, the limited driving privilege issued pursuant to this subsection is invalid.

(e)        When the probable cause of the law enforcement officer is based on the prima facie evidence rule set forth in subsection (c) above, the officer shall make a reasonable effort to contact the registered owner of the vehicle prior to initiating criminal process.

(f)        Each law enforcement agency shall adopt a policy applicable to the pursuit of fleeing or eluding motorists. Each policy adopted pursuant to this subsection shall specifically include factors to be considered by an officer in determining when to initiate or terminate a pursuit. The Attorney General shall develop a model policy or policies to be considered for use by law enforcement agencies.

(g)        through (j) Repealed by Session Laws 2013‑243, s. 6, effective December 1, 2013, and applicable to offenses committed on or after that date.

(k)        If a person is convicted of a violation of subsection (b) or (b1) of this section, the motor vehicle that was driven by the defendant at the time the defendant committed the offense of felony speeding to elude arrest becomes property subject to forfeiture in accordance with the procedure set out in G.S. 20‑28.2, 20‑28.3, 20‑28.4, and 20‑28.5.  (1997‑443, s. 19.26(a); 2005‑341, s. 1; 2011‑271, s. 1; 2013‑243, ss. 6, 7.)

CAN POLICE SEARCH YOUR CELL PHONE

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Interesting post on whether a police officer has probable cause to search your cell phone if you are placed under arrest.  Thank you to the NC SOG for the article.

The question in the title of this post is one that I’ve been asked lots of times in different factual contexts. The basic question is, given that most people have cell phones, and that people tend to use their phones to document and to communicate about just about everything that they do, is it reasonable to believe that a person who has committed a crime has evidence of that crime on his or her phone?

I don’t see that as categorically reasonable. For example, I doubt that most shoplifters document their shoplifting on their phones, so absent some indication to the contrary, evidence that a person acting alone shoplifted an item doesn’t strike me as providing probable cause to search the person’s phone. But in many circumstances, there will be probable cause to search a suspect’s phone, whether with a warrant or pursuant to an exception to the warrant requirement. That’s particularly likely where a crime is committed by a group (because the coconspirators may have communicated with one another via text message), or involves a transaction (because the participants may have arranged the transaction using their phones).

Courts across the country don’t see eye to eye on this, with some wanting specific evidence of a nexus between the crime and the phone before finding probable cause, and others being willing to find probable cause based mainly on the type of offense at issue. Two recent cases illustrate the different approaches courts may take.

In United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017), police obtained a warrant to search the defendant’s home for evidence of a gang-related homicide committed more than a year earlier. The officers were interested mainly in the defendant’s digital devices. The application stated that “gang . . . members involved in criminal activity maintain regular contact with each other . . . and share intelligence about their activities through cell phones and other electronic communication devices.” What they actually found was a firearm, which the defendant, as a convicted felon, could not lawfully possess. The defendant moved to suppress, arguing that there was no showing that he owned a cell phone, no showing that a cell phone would be in the residence, and no showing that any phone would contain pertinent evidence.

That argument didn’t persuade the trial court but it prevailed on appeal. First, the appellate court acknowledged that most Americans own cell phones, but said that there was no evidence that the defendant, who had recently been in jail for months on unrelated charges, did so. The court was “aware of no case . . . in which police obtained authorization to search a suspect’s home for a cell phone without any particularized information that he owned one.” Second, even if the defendant owned a phone, it would not necessarily be at the residence, especially if the defendant were not present. And third, the likelihood that the defendant’s phone would contain evidence of the murder was not high. Officers “might often fairly infer that a suspect’s phone contains evidence of recent criminal activity . . . perhaps especially when, as here, multiple perpetrators may have coordinated the crime.” But the shooting took place a year earlier, and the defendant might have changed phones in the interim. Even if not, he had “ample opportunity” and “every incentive” to delete incriminating evidence from his phone. Summing up, the court stated:

In view of the limited likelihood that any cell phone discovered in the apartment would contain incriminating evidence of [the defendant’s] suspected crime, the government’s argument in favor of probable cause essentially falls back on our accepting the following proposition: because nearly everyone now carries a cell phone, and because a phone frequently contains all sorts of information about the owner’s daily activities, a person’s suspected involvement in a crime ordinarily justifies searching her home for any cell phones, regardless of whether there is any indication that she in fact owns one. Finding the existence of probable cause in this case, therefore, would verge on authorizing a search of a person’s home almost anytime there is probable cause to suspect her of a crime. We cannot accept that proposition.

In contrast, consider State v. Moats, 168 A.3d 952 (Md. Ct. App. 2017). Officers determined that the defendant had provided drugs to friends and suspected that he  participated in a sexual assault against one of the friends. An officer obtained a warrant to search the defendant’s cell phone. The affidavit stated in part that in the officer’s experience, “individuals who participate in such crimes communicate via cellular telephones, via text messages, calls, e-mails etc.” A search of the phone resulted in the discovery of child pornography, and the defendant moved to suppress, contending that there was an insufficient “nexus” between the suspected crimes and the phone. That argument was unsuccessful at trial and again on appeal:

Petitioner points out that the warrant affidavit was devoid of specific facts linking the crimes and the cell phone. That much is so, but such direct evidence has never been required by the Fourth Amendment. . . . The information [the officer] set forth in the warrant affidavit supports a reasonable inference that Petitioner’s cell phone contained evidence of his connection to the drug-related charges and sexual assault investigation. . . . [S]ome deference also is to be given to [the officer’s] knowledge gained through his training and experience that persons use cell phones to communicate and that evidence of the crimes being investigated, and any related crimes, would be found on Petitioner’s cell phone. . . . This was not an unreasonable inference to draw, considering not only the prevalence of cell phones but also the degree of detail of one’s daily life that is often contained in a cell phone. . . . The nature of the criminal activity of which Petitioner was suspected supported a common-sense conclusion that he might have incriminating evidence on his cell phone. . . . By its description, the crime of drug distribution involves at least two participants—the supplier and the consumer. . . . Other crimes that by definition do not require more than one perpetrator may nevertheless involve other individuals depending on the individual facts and circumstances of the crime. Any one of these examples could permit a reasonable inference that digital communications exist on the cell phones of any one of the participants. . . . It is likewise not unusual that persons committing a sexual assault, or an accomplice witnessing the crime, document the crime on their cell phones.

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.

Search of Vehicle based soley on ordor of marijuana

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And there's something else.

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

Monday's ruling most immediately affects two individuals.

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

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

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

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

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

When is your registration really due?

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Great article by Shea Denning of NCSOG.

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

DEATHS CAUSED BY UNDOCUMENTED DRIVERS

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Interesting article on deaths caused by illegal immigrants compared to DWIs.

In the five years since an unlicensed illegal immigrant ran down his son, Don Rosenberg has turned his anger and grief into a mission to answer a seemingly simple question: How many people are killed each year by drivers who don’t belong in the U.S., much less behind a wheel?
Drew Rosenberg, a 25-year-old student at Golden Gate University, was riding his motorcycle in San Francisco when Roberto Galo struck him on Nov. 16, 2010. In his frenzied effort to flee the scene, Galo ran over his victim twice. The elder Rosenberg got the news no parent should hear from San Francisco General Hospital that night, but what he would learn over the next few years only compounded his bitterness.
As many as 7,500 Americans -- 20 per day -- are killed annually by unlicensed drivers, and Rosenberg calculates that more than half are the victims of illegal immigrants. Now, by testifying before lawmakers, speaking to parents who have been through the same ordeal and posting his research on his nonprofit’s website, unlicensedtodrive.org, Rosenberg is shedding light on a frightening number not readily available from government sources.

“Our archives are filled with stories of drunk-driving illegals killing U.S. citizens.”
- William Gheen, Americans for Legal Immigration

“I was stunned at what I found,” said Rosenberg, who at 63 is semi-retired from the entertainment and publishing industry. “Not only were unlicensed drivers killing people in numbers only exceeded by drunk drivers, but many times they were barely being punished and many times faced no charges at all.”
Galo, a Honduran, who entered the country illegally but earned temporary protective status, had been cited five months earlier for driving without a license or insurance and heading the wrong way on a one-way street in San Francisco. His car was impounded for a day, he paid a fine for the moving violation and the other charges were dropped.

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Drew Rosenberg, (l.), was killed by a man his father Don, (r.), believes should not have been in the country. (Courtesy: Don Rosenberg)

After he was convicted of manslaughter, Galo served six weeks in jail and was released. He was deported in 2013 after a years-long legal battle.
Because state and federal highway safety officials do not classify deaths by the perpetrator’s immigration stats, tabulating the deadly toll of unlicensed, illegal immigrant drivers has been a painstaking effort.  Rosenberg has pored through spreadsheets and studies, piecing together numbers that show his son’s death was neither necessary nor unique. Still, his estimate is just that, and it varies from the guesses of other groups.

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Brandon Mendoza, (l.), was killed by an unlicensed illegal immigrant, prompting his mother, Mary Ann Mendoza, (r.), to become an activist. (Courtesy: Mary Ann Mendoza)

“I’ve learned over time that many jurisdictions do not cite license status or immigration status when reporting these statistics, so if anything, the numbers are understated,” he said. “For example, San Francisco doesn’t report either criteria, so Drew’s death defaults to having been killed by a licensed driver who was a citizen.”
Such imprecise government bookkeeping masks a frightening and, critics say, preventable danger. The AAA Foundation for Traffic Safety, which obtains state-by-state data from the federal government Fatality Analysis Reporting System (FARS) database – found that 20 percent of fatal crashes involved an unlicensed driver. From 2010-2014, there was an average of 32,887 road deaths per year, which would mean 6,577 were caused by unlicensed drivers. Those drivers include citizens with suspended or revoked licenses, and those who never had licenses. But if half are illegal immigrants, it would be in line with Rosenberg’s estimates.
“Our archives are filled with stories of drunk-driving illegals killing U.S. citizens,” William Gheen, of the Americans for Legal Immigration Political Action Committee, told FoxNews.com. “It is our official estimate that more than 3,000 U.S citizens lose their lives each year due to the insufficient enforcement of our existing border and immigration law.”

Car Crash Deaths By State Per 100k Population | Credio

Brandon Mendoza was a 32-year-old, Mesa, Ariz., policeman in 2014 when an unlicensed, illegal immigrant driver drove drunk the wrong way on a freeway and killed him. Raul Silva-Corona had been convicted of criminal conspiracy in Colorado 20 years earlier, but never deported.
Mendoza’s mother believes the government could make the roads safer by at least deporting illegal immigrants who have been convicted of crimes.
“I don't believe it's reality to be able to get all of the illegals out of the country, but I do believe we need to get the criminal element out of here and secure the border so that they cannot continue to keep coming back,” Mary Ann Mendoza said.
Like Rosenberg, Mendoza has turned her grief into activism, starting a memorial foundation to continue her fallen son’s legacy and urging policymakers to take the issue more seriously.
“Until you have lost a loved one to an illegal criminal, you will never truly understand the other side of this issue,” she said.
The problem of unlicensed illegal immigrant drivers is most severe in the southwest, according to Peoria, Ariz., Police Detective Chris Boughey. Patrolling the streets of the Phoenix suburb, Boughey has encountered many incidents involving unlicensed, illegal immigrant drivers and considered it in a national perspective.
“With at least 11.4 million unauthorized immigrants in the United States, it can be surmised that a large population drive a vehicle on a regular basis,” Boughey said, adding that enforcing laws already on the books should mean deportation for illegal immigrants caught driving without valid licenses.
When government agencies do acknowledge the danger posed by unlicensed drivers, including illegal immigrants, they often use the information to further a pro-illegal immigrant agenda, say critics.
In the wake of a 2013 study by the California Department of Motor Vehicles that concluded that unlicensed drivers are almost three times as likely to cause a deadly car accident as a licensed driver, Gov. Jerry Brown signed legislation allowing illegal immigrants to obtain driver’s licenses. California, which was believed to have 2 million unlicensed drivers prior to passage of the law, is now one of a dozen states to allow the controversial practice.
“States that have worked with undocumented immigrants to enable them to get drivers licenses and insurance see a decrease in uninsured motorist claims,” said Janet Ruiz, of the Insurance Information Institute. “The availability of driver’s licenses and insurance promote safer driving and less accidents.”
Gregory Chen, director of advocacy at the American Immigration Lawyers Associated, agreed.
"The best way to ensure safety on our nation's roads is to make sure everyone who drives has passed a driver's exam, and has a license and insurance,” he said. “The last thing states and localities want is for their law enforcement and emergency teams to arrive at roadside accidents where drivers are uninsured and where injured persons arrive at hospitals unable to pay."
But Gheen and other critics say those who combat the problem of unlicensed drivers by awarding them licenses have it backward. A better solution, he said, is enforcing existing immigration law to the point that people are no longer encouraged to “enter and remain in the U.S. illegally.”
Rosenberg, who describes himself as a “lifelong liberal,” said the circumstances surrounding his son’s death have left him bitter at the group he calls the “amnesty crowd.” He also wants illegal immigrants caught driving without a license to be deported.
 “While I can sympathize with people who want to make their lives better, they can’t do it at the expense of others,” he said. “I am not angry at those who come here to try and better their life or their children’s, but it can’t be condoned or rewarded.”

HAPPY EASTER FROM LAW ENFORCEMENT

HAPPY EASTER FROM LAW ENFORCEMENT

Speeding enforcement crackdown in NC to target anyone going above posted limit

Posted 11:17 am, March 23, 2016, by Web Staff

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(WTVD)

RALEIGH, N.C. — How fast can you go on the highway without getting the attention of police? Anything under 10 miles per hour over the speed limit is okay, right?
Well, WTVD reported that the North Carolina Department of Transportation is ready to burst the bubble on the widely believed 9 mph cushion myth.
The governor’s highway safety program is ramping up what’s being called “Obey the Sign or Pay the Fine” speeding enforcement crackdown.
Apparently, there’s a belief out there that if the speed limit is 65, officers or troopers won’t pull you over if you’re doing 1 to 9 miles per hour over the limit – a so-called buffer zone.
The DOT says that’s not the case. Law enforcement says beginning Thursday, they’ll target and ticket anyone driving above the posted speed limit.

License Revocations

www.kisslinglaw.com

Great old article by Shea Denning at the NC School of Government on Limited Driving Privileges.  One problem I see is that you cannot just choose to not drive for a year. You must have the interlock in your car for a year before you can get your license reinstated.

She wrote here about several types of driver’s license revocations that can result from a person being charged with and convicted of impaired driving under G.S. 20-138.1 as well as about a driver’s ability to obtain a limited driving privilege to mitigate the effects of the revocation that occurs upon conviction. The earlier post omitted any discussion of additional licensure consequences and limited privilege restrictions that are specific to a defendant convicted of impaired driving based upon a blood alcohol concentration of 0.15 or more, ramifications that I will explore in this post.
As is the case for any person convicted of impaired driving in violation of G.S. 20-138.1, a person so convicted based on an alcohol concentration of 0.15 is subject to a license revocation of at least one year. G.S. 20-17(a)(2); G.S. 20-19(c1). The revocation period is longer if the person has one or more qualifying prior convictions. G.S. 20-19(d), (e1). Such a person may, if he or she is otherwise eligible for a limited driving privilege under G.S. 20-179.3, obtain such a privilege authorizing limited driving during the period of revocation. If, however, evidence that the person had an alcohol concentration of 0.15 or more was presented at trial or sentencing, the limited privilege must contain additional restrictions that reflect the person’s status as a “high-risk driver.” G.S. 20-179.3(c1).
Limited Driving Privilege Requirements for High-Risk Drivers
A limited privilege issued to a high-risk driver must:
(1) not become effective until at least 45 days after the final conviction under G.S. 20-138.1;
(2) restrict the driver to operating only a designated motor vehicle;
(3) require that the designated motor vehicle be equipped with functioning ignition interlock system of a type approved by the Commissioner of NC DMV, which is set to prohibit driving with an alcohol concentration greater than 0.00;
(4) require that the driver personally activate the ignition interlock system before driving the motor vehicle; and
(5) restrict the applicant to driving only to and from the applicant’s place of employment, the place the applicant is enrolled in school, any court ordered treatment or substance abuse education, and any ignition interlock service facility.
G.S. 20-179.3(c1);(g5). AOC-CR-341 is the form for such privileges.
For purposes of determining whether the person qualifies as a high-risk driver, G.S. 20-179.3(c1) provides that the results of a chemical analysis presented at trial or sentencing are sufficient to prove a person’s alcohol concentration, are conclusive, and are not subject to modification by any party, with or without approval of the court.
Exception for Employer-Owned Motor Vehicles
The ignition interlock restrictions for a limited driving privilege that are set forth as requirements (2), (3), and (4) above do not apply to a motor vehicle that is owned by the driver’s employer and that the driver operates solely for work-related purposes if the owner of the vehicle files with the court a written document authorizing the driver to drive the motor vehicle for work-related purposes under the authority of the limited driving privilege. G.S. 20-179.3(g4). This exception to ignition interlock requirements is unique to the limited privilege; there is no such exception to ignition interlock requirements that apply after the period of revocation ends and a person’s license is restored. G.S. 20-17.8.
License Restoration
A limited driving privilege issued pursuant to G.S. 20-179.3 is effective only during the period of revocation imposed pursuant to G.S. 20-17(a)(2). At the conclusion of the revocation period, a person may apply to NC DMV to have his or her license restored. See G.S. 20-7(i1) (imposing $100 restoration fee for person revoked under G.S. 20-17(a)(2)); G.S. 20-17.6 (imposing requirements for restoration of license following conviction of driving while impaired); G.S. 20-17.8 (imposing ignition interlock requirements upon restoration). If NC DMV receives an affidavit pursuant to G.S. 20-16.2(c1) stating that the driver had an alcohol concentration of 0.15 or more, the person’s license may be restored (after a period of revocation following conviction of impaired driving under G.S. 20-138.1) only with an ignition interlock restriction providing that:
(1) the driver may operate only a vehicle that is equipped with a functioning ignition interlock system of a type approved by the Commissioner of NC DMV;
(2) the driver must personally activate the ignition interlock system before driving the vehicle; and
(3) the driver may not drive with an alcohol concentration of 0.04 or more. (An alcohol concentration restriction of 0.00 is required if the driver also was convicted, based on the same circumstances, of (i) driving while impaired in a commercial vehicle; (ii) driving while less than 21 after consuming alcohol or drugs; (iii) death by vehicle or serious injury by vehicle; or (iv) manslaughter or negligent homicide resulting from the operation of a vehicle when the offense involved impaired driving.)
G.S. 20-17.8(b). An alcohol concentration restriction of 0.04 combined with an ignition interlock restriction is noted on a person’s license as restriction 20. An alcohol concentration restriction of 0.00 combined with an ignition interlock restriction is noted on a person’s license as restriction 22.
These requirements are in effect for (1) one year from the date of restoration if the original revocation period was one year; (2) three years from the date of restoration if the original revocation period was four years; or (3) seven years from the date of restoration if the original revocation was a permanent revocation. G.S. 20-17.8(c). If the person was eligible for and received a limited driving privilege under G.S. 20-179.3, with the ignition interlock requirement contained in G.S. 20-179.3(g5), the period of time for which the limited driving privilege was held must be applied toward the requirements of G.S. 20-179.3(c). Thus, a high-risk driver subject to a one-year revocation who was issued a limited driving privilege on the forty-sixth day after the revocation is required to maintain ignition interlock for only forty-five additional days post-restoration.
A person subject to the ignition interlock requirement as a condition of license restoration must equip all the vehicles he or she owns with ignition interlock. G.S. 20-17.8(c1). NC DMV may grant an exception to the requirement that all vehicles be so equipped for vehicles that are relied upon by another member of the person’s family for transportation and are not in the possession of the affected driver. Id. So, for example, if a driver owns a motor vehicle that is driven by and in the possession of the driver’s son or daughter who is attending college and lives outside the family home, the college student’s motor vehicle does not have to be equipped with ignition interlock.
Approved Ignition Interlock Providers
As noted earlier, to satisfy the requirements for both limited driving privilege and license restoration purposes, the ignition interlock system installed must be of a type approved by the Commissioner of NC DMV. NC DMV issued in February 2011 new ignition interlock program standards and procedures. A kerfuffle ensued upon their adoption between NC DMV and the longstanding and exclusive provider of ignition interlock services, Monitech, Inc., which was not initially certified under these standards. Two lawsuits filed by Monitech were settled a few months ago pursuant to an agreement that allows Monitech to continue serving as an ignition interlock provider for existing customers and permits Monitech to accept new customers until July 31, 2012, a date by which NC DMV will have completed its review of the company’s new certification application. See Craig Jarvis, Morrisville ignition-lock company Monitech settles with DMV, News and Observer, March 22, 2012. Smart Start Inc. is the only company currently certified under the new standards.