Raleigh City Code v. State Statue Violation

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

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

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

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

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

Proposed New DWI Laws in North Carolina

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Here is a post about new DWI laws that are being proposed by the NC legislature which will put even more restrictions on persons convicted of DWI in North Carolina.

Last week was crossover deadline at the General Assembly–a major event for lawmakers, legislative staffers, lobbyists and policy wonks. If you don’t fall into any of these categories, the deadline may not have greatly affected your work week. But because crossover marks (at least theoretically) the deadline by which non-revenue bills must pass one chamber of the legislature in order to be considered by the other during the remainder of the session, it is a good time to take stock of pending legislation. A complete listing of bills that met crossover is available here. Several of these bills would significantly amend laws related to impaired driving.
H 31. 0.00 Alcohol Restriction—All DWI. As the short title suggests, this bill amends G.S. 20-19(c3)(1) to require the North Carolina Division of Motor Vehicles to impose a 0.00 alcohol concentration restriction on the driver’s license of any person whose license is restored following a conviction for impaired driving under G.S. 20-138.1 or a similar offense in another state. A first-time offender currently may have his or her license restored with a restriction prohibiting the person from driving with an alcohol concentration of 0.04 or greater. H 31 also amends the ignition interlock statute, G.S. 20-17.8(b), to require that any person whose license is restored subject to an ignition interlock restriction be prohibited from driving with an alcohol concentration of greater than 0.00. Under current law, a person required to have ignition interlock because of an alcohol concentration of 0.15 or more, and not because of a previous conviction, is subject to a restriction that he or she not drive with an alcohol concentration of 0.04 or greater. The bill applies to offenses committed on or after July 1, 2016. A similar bill, S 308, was introduced in the Senate.
H 32. Amend Habitual DWI. This bill amends G.S. 20-138.5 to provide that a person commits the offense of habitual impaired driving if he or she drives while impaired and has been convicted of two or more impaired driving offenses within ten years of the date of the offense. Current G.S. 20-138.5 requires that a person have been convicted of three impaired driving offenses within ten years in order to commit the offense of habitual impaired driving by again driving while impaired. If enacted, H 32 will be effective for offenses committed on or after December 1, 2015.
H 173. Omnibus Criminal Law Bill. In addition to amending numerous other criminal law provisions, this bill rewrites G.S. 20-38.7(c), which currently provides that the sentence imposed by a district court in an implied consent case is vacated upon the defendant’s giving notice of appeal to superior court. Thus, under current law, a new sentencing hearing must be held any time an implied consent case is remanded from superior court to district court. The bill eliminates from G.S. 20-38.7(c) the language vacating the sentence immediately upon the defendant’s giving notice of appeal. It instead provides that when an appeal is withdrawn or a case is remanded back to district court, the sentence is vacated and the district court must hold a new sentencing hearing and consider any new convictions unless (1) the defendant withdraws his or her appeal before the case has been calendared in superior court and the prosecutor certifies to the clerk in writing that there are no new sentencing factors, or (2) the defendant withdraws his or her appeal after the case is calendared in superior court, the case is remanded by order of the court, and the prosecutor certifies to the clerk in writing that he or she consents to the withdrawal and has no new sentencing factors to offer the court.
H 357. Toxicology Reports/District Court. Is it Thursday yet? Because this is a throwback to 2009. This bill undoes the district court notice and demand procedures enacted by the General Assembly following the Supreme Court’s opinion in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). It enacts new G.S. 8-58.21, which provides that a toxicology report that is signed and sworn to by the person performing the analysis is admissible in district court without the testimony of the analyst. For the report to be admitted, the district attorney must satisfy certain criteria, including serving notice of the report and his or her intent to introduce it on the defendant or his or her attorney. The bill provides that the new provisions, effective for trials commencing on or after October 1, 2015, shall not “be construed as an abrogation of any State or federal constitutional or statutory right otherwise applicable in criminal cases with the exception of the right to a jury trial in district court.” If the bill passes, the courts will have the last word on that matter.
H 924. Highway Safety/Salary Changes. G.S. 20-139.1(b5) currently requires that a law enforcement officer who has initiated chemical testing of a person charged with a death or serious injury by vehicle offense under G.S. 20-141.4 request that the person provide a blood sample for analysis. This bill amends G.S. 20-139.1(b5), effective for offenses committed on or after December 1, 2015, to clarify that this requirement applies only within a relevant time after the driving. “Relevant Time after the Driving” is defined in G.S. 20-4.01(33a) as “any time after the driving in which the driver still has in his body alcohol consumed before or during the driving.” This bill makes several other changes to motor vehicle laws that are unrelated to impaired driving.

IMPLIED CONSENT TO BLOOD TEST

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North Carolina's Implied Consent law requires the arresting officer to give certain warnings before taking a breath test.  Below is a great article on how that apples to blood test taken with and without a warrent.
As always, thanks to Shea Denning for her great writing.

In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine.  In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes.  If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent.  None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.

Purpose of Implied Consent Statutes. Implied consent laws were enacted in North Carolina, as in the other forty-nine states, to make it easier for the State to gather reliable chemical evidence of impairment while, at the same time, avoiding potentially violent citizen-police confrontations. If the State was required to obtain a search warrant in every impaired driving case to justify the search of the defendant’s breath, blood, or other bodily fluids, DWI investigations would take more time. If there was no penalty for a suspect’s refusal to cooperate with such testing, compliance presumably would drop.  And if law enforcement officers were required to physically force suspects to comply with nonconsensual testing in every case, one might expect an increase in physical resistance from suspects.
North Carolina’s implied consent statutes require that a suspect be notified of certain rights before being asked to submit to testing.  A suspect must be informed that (1) she may refuse, but her license will be revoked; (2) the test results or refusal will be admissible at trial; (3) certain results will trigger an immediate license revocation; (4) she may seek her own test, and (5) she may call an attorney for advice and select a witness to view testing, but testing may not be delayed for more than 30 minutes. This notice is designed to incentivize the suspect’s compliance as well as to satisfy due process.  North Carolina’s courts have held that the results of an implied consent test carried out without the defendant having first been advised of his implied consent rights are inadmissible. State v. Williams, ___ N.C. App. ___, 759 S.E.2d 350 (2014).
Search warrants. But implied consent testing isn’t the only way for the State to gather chemical evidence of impairment. When a suspect refuses to be tested, or is incapable of refusing, a law enforcement officer may apply to a magistrate for a search warrant that authorizes the withdrawal of the defendant’s blood for testing. And, though it seldom does so, the State may forego implied consent altogether, opting instead to seek a search warrant for blood at the outset of its investigation. When an officer swears to facts that establish probable cause that evidence of an impairing substance is present in the bodily fluid sought from the person and that the presence of such an impairing substance is evidence of a crime, a search warrant properly may issue. Search warrants for blood in DWI cases typically are issued on form AOC-CR-155. Warrants in this form direct law enforcement officers to “take the person named in the application to a physician, registered nurse, emergency medical technician or other qualified person to obtain sample(s) of blood and/or urine described in the application from the person named in the application” and “to seize the sample(s).”
Implied consent procedures don’t apply when there is a search warrant. Implied consent procedures don’t govern the withdrawal of a suspect’s blood pursuant to a search warrant. Thus, there is no requirement that a suspect be advised of the implied consent rights codified in G.S. 20-16.2 before a search warrant for blood is issued.
Why? As I noted earlier, implied consent statutes are primarily designed to facilitate the gathering of chemical evidence—not to stymie it. Executing a search warrant for the withdrawal of a defendant’s blood remains a viable alternative option for obtaining such evidence.  Indeed, the implied consent statutes themselves recognize this. See G.S. 20-139.1(a) (“This section does not limit the introduction of other competent evidence as to a person’s alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.”) Moreover, once a neutral, detached judicial official has issued a search warrant, many of the concerns addressed by the implied consent notice are no longer valid. The suspect’s consent is unnecessary. The license revocation provisions for willful refusal do not apply. The suspect has no need to consult an attorney regarding his or her consent, as the suspect no longer has a choice in the matter.
But what about the definition of chemical analysis? G.S. 20-16.2(a) requires that “[b]efore any type of chemical analysis is administered, the person charged shall be taken before a chemical analyst” who must advise the person of his/her rights.  The term “chemical analysis” is defined as a breath, blood, or urine test “performed in accordance with G.S. 20-139.1.”  G.S. 20-4.01(3a).  Even though blood tests performed pursuant to a search warrant are performed in accordance with G.S. 20-139.1, the State routinely relies on the provisions of G.S. 20-139.1 in admitting such results into evidence.
Plus, there’s footnote in Williams, ___ N.C. App. at  ___, 759 S.E.2d at 354 n.1, stating that “upon a defendant’s refusal to provide a blood sample as requested, law enforcement may seek a warrant to obtain the blood sample for testing.  N.C.G.S. § 20-139.1(b5).”  Doesn’t that mean that blood draws pursuant to search warrants subject to the implied consent procedures?
Warrant searches are different. Searches pursuant to a search warrant are constitutionally permissible and are authorized by Article 11 of the Criminal Procedure Act. Thus, unlike implied consent testing, there was no need for the General Assembly to enact statutes permitting and regulating the issuance and execution of such warrants in Chapter 20 cases. The inapplicability of implied consent warnings to search warrant searches, for the reasons discussed above, provides evidence that the General Assembly did not in fact attempt to separately regulate such searches in DWI cases.
As for footnote 1 of Williams, G.S. 20-139.1(b5) was cited because Williams involved a DWI and a fatality. G.S. 20-139.1(b5) addresses subsequent testing in DWI cases generally, requiring that a suspect be re-advised of his implied consent rights before being requested to submit to a subsequent chemical analysis under the implied consent procedures. It refers to the issuance of search warrants only for cases involving charges of death or serious injury by vehicle, requiring in such cases that a law enforcement officer seek a warrant to obtain a blood sample if the person is charged with a violation of G.S. 20-141.4 and there is probable cause to believe the offense was alcohol-related. In the routine DWI case, the matter of whether to apply for a search warrant is left to the officer’s discretion.
Thus, the citation of G.S. 20-139.1(b5) in Williams does not signify that advisement of rights is required before a search warrant for a defendant’s blood is executed.

North Carolina Speeding in a Work Zone

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The North Carolina State Legislature is looking at the laws for Speeding in a Work Zone and whether the law should apply when there are no workers.  The current law applies 24 hours a day regardless if there are workers present or not.
Below is the article from the News and Observer on the new proposal.

Drivers would be spared the state's $250 penalty for speeding through highway work zones in cases where no construction workers were present at the time, under legislation moving quickly through the House. The House Transportation Committee approved the bill Wednesday after emotional debate that featured the obituary of a state Department of Transportation worker who was killed March 23 in a Goldsboro work zone crash. "I find it morally wrong to jeopardize their safety as they put their lives in harm's way to make the roads safer for us," said Rep. Dean Arp, a Union County Republican, after handing out copies of the obituary for William Grey Bailey, 35, of Kenly. "The increased penalty for speeding through a work zone is an effective deterrent." But the bill's sponsor, Rep. Sarah Stevens, didn't back down. She said the driver responsible for Bailey's death was impaired and would be punished for more serious offenses. Stevens, a Surry County Republican, said her bill would not change the reduced speed limits posted to make drivers slow down in work zones. "It just says if workers are not present, we should not assess a $250 penalty," she said. "The problem still occurs in my county, where they've got a speed trap set up in this work zone where there's no work going on." Rep. Larry Yarborough, a Person County Republican, agreed. "Half the drivers are not slowing down because they see there's no construction going on and no reason to go slower," Yarborough said.

Arp said DOT reduces the speed limit and posts signs warning of $250 tickets for violators only at a small fraction of work sites. He said the department had 734 active work zones across the state at the first of April, but only 30 where the $250 speeding penalty was applied. Rep. Jay Adams, a Catawba County Republican, said work zone restrictions were also intended to protect drivers from construction-related hazards. The committee approved Stevens' bill on a split vote and sent it for further consideration to a judiciary committee chaired by Stevens.

Also Wednesday, the House Transportation Committee endorsed a bill to eliminate tolls on all state ferries. DOT collects tolls on three of its seven ferry routes. The House and Senate have tussled over ferry tolls for several years. A Senate push to require tolls on all seven routes prevailed a few years ago, but Gov. Bev Perdue blocked its implementation and legislative leaders did not force the issue.(Bruce Siceloff, THE NEWS & OBSERVER, 4/23/15).

DWi and gun possession

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Below is a great article on the effects of a DWI in NC to your ability to possess a fire arm.  As always, thanks to Shea Denning at the school of government.

The maximum punishment for driving while impaired in violation of G.S. 20-138.1 increased from two to three years in 2011. As a result, defendants convicted of misdemeanor DWI and sentenced at the most serious level—Aggravated Level One—are prohibited from possessing firearms by federal law. That’s because federal law prohibits firearm possession by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year, though state law misdemeanors that are punishable by a term of imprisonment of two years or less are excluded from this category of disqualifying convictions. Because North Carolina law sets out a single offense of driving while impaired, which may be punished at varying levels, rather than six separate offenses, there is a question as to whether any defendant convicted of misdemeanor DWI on or after December 1, 2011 may lawfully possess a firearm, regardless of the level at which the defendant was actually punished.

Federal gun law. The federal law colloquially referred to as the felon-in-possession statute is 18 U.S.C. § 922(g)(1).  See Schrader v. Holder, 831 F. Supp. 2d 304, 309 (D.D.C. 2011) aff’d, 704 F.3d 980 (D.C. Cir. 2013). That label is a misnomer, however, as misdemeanor convictions punishable by more than two years imprisonment under state law also disqualify a person from possessing a firearm. Id. Section 922(g)(1) makes it unlawful for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess a firearm. Another provision, 18 U.S.C. § 921(a)(20), defines “crime punishable by imprisonment for a term exceeding one year” to exclude “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Thus, for defendants convicted of misdemeanors under state law, the question of whether they are disqualified from possessing a firearm under 18 U.S.C. 922(g)(1) is determined by whether the misdemeanor for which they were convicted carried a maximum punishment of more than two years. If so, the person is disqualified.  (A separate provision of federal law, 18 U.S.C. § 922(g)(9), prohibits firearm possession by a person who has been convicted of a misdemeanor crime of domestic violence. That provision is not tied to a determination of the maximum punishment that could have been imposed for the crime, and is not discussed herein.)
State DWI law. G.S. 20-138.1 proscribes the conduct known as DWI in North Carolina.  A person who (1) drives (2) a vehicle (3) on a street, highway, or public vehicular area within the State, (4) while under the influence of an impairing substance commits the offense of misdemeanor DWI.  The person’s relative culpability is sorted out at sentencing, based largely on whether the person (1) had other DWI convictions within the previous seven years; (2) had a license that was already revoked for DWI; (3) seriously injured another person; and/or (4) had a child or disabled person in the vehicle when he or she drove. See G.S. 20-179(c). In superior court, the State must notify the defendant in writing and before trial of its intention to prove any aggravating factor, including the four grossly aggravating factors previously mentioned.  The existence of one or more grossly aggravating factors increases the potential punishment a defendant faces.  If three or more grossly aggravating factors are found, the defendant is punished at Aggravated Level One, and may receive up to three years’ imprisonment. If two grossly aggravating factors are found, the defendant is punished at Level One, and may receive up to two years’ imprisonment.  Levels Two through Five carry lesser maximum punishments.
Because G.S. 20-179 effectively requires a prosecutor in superior court to plead applicable aggravating factors, and requires that such factors, other than the fact of a prior conviction, be proved to the jury beyond a reasonable doubt, questions regarding whether G.S. 20-138.1 and G.S. 20-179 define one or six offenses are, in most circumstances, academic.  The federal felon-in-possession law is, however, an exception.  If there are six separate DWI offenses, then only a DWI conviction punished at Aggravated Level One disqualifies a defendant from possessing a firearm.  If there is but one crime of DWI that carries a maximum punishment of three years, then any conviction for a DWI committed December 1, 2011 or later might be viewed as disqualifying 
disqualifiesa defendant from possessing a firearm. See Binderup v. Holder, 2014 WL 4764424 (E.D.Pa. Sept 25, 2014) (unpublished op.) (“The cases discussed above demonstrate that the phrase “punishable by”, as utilized in § 921(a)(20) and § 922(g)(1), concerns the maximum . .  potential . . . term of imprisonment applicable to a particular prior state-law conviction.”).
It seems to me that there are reasonable arguments to be made both ways.
The Fourth Circuit’s analysis in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), of whether convictions under the State’s structured sentencing laws qualify as offenses “punishable by imprisonment for more than one year,” tends to support the view that only a defendant punished at Aggravated Level One is disqualified under § 922(g)(1). The Simmons court concluded that the defendant’s conviction for a Class I felony offense for which he could not have received a sentence exceeding eight months’ community punishment given his lack of criminal history was not a conviction for an offense punishable by imprisonment for term exceeding one year, even though a defendant with a certain number of prior criminal convictions could have received a sentence exceeding twelve months’ imprisonment. The court explained that the “mere possibility that Simmons’s conduct, coupled with facts outside the record of conviction, could have authorized a conviction of a crime punishable by more than one year’s imprisonment cannot and does not demonstrate that Simmons was actually convicted of such a crime.”  Id. at 244 (internal quotations omitted). The Fourth Circuit in United States v. Carter, 471 Fed. Appx. 136 (4th Cir. 2012) (unpublished op.), applied Simmons in determining that a defendant’s prior convictions for drug offense classified as felonies under North Carolina’s structured sentencing regime were not offenses punishable by a term of imprisonment exceeding one year for purposes of the federal felon-in-possession statute. 
Simmons relied upon the fact that the State had to prove the existence of aggravating factors sufficient to warrant the imposition of an aggravated sentence under the Structured Sentencing Act.  That also is true under the sentencing scheme set forth in G.S. 20-179 for DWI.
May the federal government categorically ban persons convicted of DWI from possessing a firearm?
The right to bear arms. The United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), held that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, including self-defense within the home.  In recognizing an individual right to keep and bear arms, however, the court was careful to note that it did not intend to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” as well as other long-enshrined restrictions.  See also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality op.) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ . . . . We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation [of the Second Amendment by the Fourteenth Amendment] does not imperil every law regulating firearms.”). Courts considering post-Heller challenges to § 922(g)(1) have relied upon this commentary in upholding the provision as constitutional.
Are misdemeanants different? The District of Columbia Circuit Court of Appeals in Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013), considered plaintiffs’ challenge to his disqualification under § 922(g)(1) based on a decades-old conviction of a common law misdemeanor.  The Schrader court determined that even assuming that common-law misdemeanants fell within the scope of the Second Amendment’s protection, the firearms ban imposed upon this class of individuals was constitutional.  The court applied intermediate, rather than strict, scrutiny since “common-law misdemeanants as a class cannot be considered law abiding and responsible.” Id. at 989.  Thus, the government was required to demonstrate that disarming common-law misdemeanants is substantially related to an important governmental objective.  Schrader held that the government met this test.  The statute’s overarching objective is prevention of armed violence, which is of obvious importance.  The firearms ban in § 922(g)(1) is reasonably designed to accomplish that objective as it keeps guns away from people suspected of more serious crimes—people who might be expected to misuse such weapons. While some common-law misdemeanants may pose no such risk, Schrader noted that “Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons.” Id. at 991 (internal citations omitted).
As-applied challenges might succeed. The Schrader court noted that Heller might dictate a different outcome had the plaintiffs raised an as-applied challenge. Schrader himself was disqualified based on a misdemeanor conviction for assault and battery that occurred forty years before he sought to purchase a gun.  The offense involved only a fistfight.  Schrader received no jail time, served honorably in Vietnam, and, except for a single traffic violation, had no arrests or convictions in the years that followed.  The court declined to consider such a challenge, however, as it had not been argued below.

Wake County DWI Attorney

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The firm is expanding to DWI cases so I will start covering some DWI issues.  Below is a great article on Level A1 DWI sentencing.

Top 3 Questions About Level A1 DWI Sentences

Posted on May. 7, 2014, 10:37 am by Shea Denning • 5 comments

The most serious level of misdemeanor DWI is Aggravated Level One, which I generally refer to as Level A1.  A defendant convicted of driving while impaired is subject to sentencing at Level A1 if three or more grossly aggravating factors apply.  G.S. 20-179(c). Typically, defendants sentenced at this level are repeat offenders, though it is possible to reach Level A1 if one drives while impaired with a person under 18 in the vehicle, with a license that is civilly revoked for an earlier DWI charge that did not result in conviction, and, in the process, causes serious injury to another.

A defendant sentenced at Level A1 may be fined up to $10,000 and must be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. G.S. 20-179(f3). The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days.
Because Level A1 is a relatively new level of punishment—it applies to offenses committed on or after December 1, 2011—many litigants, judges, and defendants have questions about the legal requirements for such sentences and how the sentences are administered.
Below are the three questions I hear most often.
1. May the judge credit against a Level A1 sentence the time a defendant spent in inpatient treatment?
Yes. G.S. 20-179(k) allows a judge to credit against a term of imprisonment ordered for any level of DWI, including Level A1, the time a defendant was an inpatient at a treatment facility operated or licensed by the State for the treatment of alcoholism or substance abuse. To be eligible for credit, the treatment must have occurred after the defendant committed the DWI offense for which he or she is being sentenced.
The judge also may order that special probation (in other words, a split sentence) imposed pursuant to a suspended Level A1 sentence be served at a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. The defendant must have been accepted by the facility for admission or commitment as an inpatient and must bear the expense of any treatment unless the judge orders the State to absorb the costs.
2. How much of an active Level A1 sentence will a well-behaved defendant actually serve?
The defendant will serve the maximum term of imprisonment imposed, less four months. A defendant sentenced at Level A1 is not eligible for parole.  The defendant must, however, be released to post-release supervision four months before the expiration of his or her maximum term. No good time credit is being awarded to reduce Level A1 sentences, even though the applicable Division of Adult Correction (DAC) regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time credit at the rate of one day deducted for each day served with good behavior. Though the regulations do not distinguish among levels of DWI, DAC has determined that the credit does not apply to Level A1 sentences.
Thus, regardless of how he or she behaves, a defendant sentenced to 36 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 32 months.  A defendant sentenced to 12 months imprisonment for Level A1 DWI will be released to post-release supervision after serving 8 months imprisonment.
3. May a judge allow a defendant to serve a Level A1 sentence on weekends?
Yes. A judge may order a term of imprisonment for any level of DWI to be served on weekends. G.S. 20-179(s), which applies to all levels of DWI sentencing, provides that if the defendant is ordered to a term of 48 hours or more, he or she must be required to serve 48 continuous hours of imprisonment to receive credit for time served. This means that a judge could order an entire 36-month Level A1 sentence to be served in 48-hour increments.
Split sentences for Level A1 DWIs also may be served on weekends and must likewise be served in 48-hour increments.  Any non-continuous period of imprisonment for a split sentence may only be served in a designated local confinement or treatment facility rather than in a DAC prison.  See G.S. 15A-1351(a).

Can Law Enforcement Use Drones to Issue Traffic Tickets in North Carolina

www.kisslinglaw.com

The current answer is no.  However, there are efforts being made by law enforcement and the State to change that.  Real the article below to see the steps that need to be taken before that can be done.

As always, thanks to the great legal minds at the North Carolina School of Government.

Drones are remote-controlled aircraft. They can be equipped with cameras, and may be useful for surveillance. Does the use of drones by law enforcement officers raise any legal concerns?
The short answer is yes, in at least four ways.
Federal approval required. First, it appears that before any governmental entity may use drones, the entity must obtain a Certificate of Authorization from the Federal Aviation Administration. The FAA describes the COA process briefly here. However, failure to obtain FAA approval likely would not require the suppression of any evidence, such as video footage, obtained by an unauthorized drone. Violations of federal statutes and regulations don’t normally require suppression, so long as the violations are not also constitutional violations. (Constitutional violations are discussed below.)
State CIO approval required. Second, before any governmental entity in North Carolina may use drones, the entity must obtain approval from the State CIO. This requirement is the result of several legislative enactments:

• Section 7.16 of the 2013 appropriations bill, L. 2013-360, provides that “[u]ntil July 1, 2015, no State or local governmental entity or officer may procure or operate and unmanned aircraft system . . . unless the State CIO approves.”
• Section 7.11 of the 2014 appropriations bill, L. 2014-100, extends the ban on unapproved governmental use of drones through December 31, 2015.

Would a violation of this requirement necessitate the suppression of any evidence obtained thereby? Maybe. Although the statutory exclusionary rule in G.S. 15A-928 applies only to violations of Chapter 15A, the appellate courts have sometimes suppressed evidence as a sanction for other statutory violations by state actors, as Shea noted here in connection with a violation of Chapter 20.
Compliance with new drone statute required. Third, section 34.30 of the 2014 appropriations bill, S.L. 2014-100, enacted new Article 16B of Chapter 15A. That article generally prohibits the use of drones to conduct surveillance of “[p]rivate real property,” “[a] person,” or “a dwelling occupied by a person and that dwelling’s curtilage” without consent. But it contains exceptions allowing law enforcement to conduct drone surveillance with a warrant, or without a warrant when there is a high risk of a terrorist attack; when the surveillance involves an area that is in an officer’s plain view; or when exigent circumstances exist. It also allows law enforcement “[t]o photograph gatherings to which the general public is invited on public or private land.”
The statute contains an exclusionary rule and provides for a civil cause of action against violators. The appropriations bill also enacted new Article 10 of Chapter 63, requiring public drone operators to be trained and licensed.
The statute doesn’t define “surveillance,” which has led some to criticize the statute for vagueness. The exception allowing law enforcement officers to photograph public gatherings on private property has also been controversial.
Compliance with the Fourth Amendment required. Fourth, any law enforcement activity involving drones must comply with the Fourth Amendment. However, it is far from clear how the Fourth Amendment applies to drones. Will they be governed by the precedents concerning aircraft flyovers, like California v. Ciraolo, 476 U.S. 207 (1986), which generally allow considerable leeway to law enforcement? Does the increasing prevalence of hobbyists’ drones mean that there can be no reasonable expectation of privacy from drones? Or does the existence of inexpensive drones present a novel Fourth Amendment concern that will require a novel doctrine to address it, as the Supreme Court arguably charted new courses regarding GPS tracking in United States v. Jones, 565 U.S. __ (2012), and regarding cell phone searches incident to arrest in Riley v. California, 573 U.S. __ (2014)? There are not many court decisions in this area, but there are plenty of law review articles, including Chris Schlag, The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights, 13 U. Pitt. J. Tech. L. & Pol’y 1 (2013); Timothy T. Takahashi, Drones and Privacy, 14 Colum. Sci. & Tech. L. Rev. 72 (2013); Andrew B. Talai, Comment, Drones and Jones: The Fourth Amendment and Police Discretion in the Digital Age, 102 Cal. L. Rev. 729 (2014); and Matthew R. Koerner, Comment, Drones and the Fourth Amendment: Redefining Expectations of Privacy, 64 Duke L.J. 1129 (2015).
Other possible issues. In certain cases, drone use might implicate other legal concerns. For example, the use of a drone to make audio recordings of otherwise private conversations might run afoul of the electronic surveillance statute, G.S. 15A-287.
Concluding thoughts. As far as I know, law enforcement agencies in North Carolina aren’t using drones now. Recall that State CIO approval is required to use drones prior to December 31, 2015. In March 2014, the State CIO issued a report and made a presentation on drone use to a legislative committee. The presentation stated that NC State’s Next Generation Air Transport project was the only governmental entity approved to use drones at that time. (Of course, some agencies might have sought approval since that time.) A few agencies apparently own drones, presumably purchased before the 2013 moratorium took effect, as reported in this Independent Weekly story. Perhaps agencies are waiting for the legal landscape to settle. The General assembly is considering more changes to the drone laws this session, including House Bill 4, which appears to me to be technical in nature, and Senate Bill 622, which would remove the exemption that allows law enforcement surveillance of gatherings to which the general public is invited on private land. In the long run, though, the use of drones by law enforcement is likely inevitable.