New law on Possession of Marijuana

www.kisslinglaw.com

Law may now require officers to arrest rather than merely cite for possession of less and 1/2 ounce of marijuana.  Below is a great article by the NC School of Law.
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.
Before this session. Until this legislative session, G.S. 15A-502(a) generally permitted criminal defendants to be fingerprinted only if (a) they were arrested, rather than cited or summoned to court, (b) they were “[c]omitted to imprisonment upon conviction,” or (c) they were convicted of a felony. Meanwhile, G.S. 15A-502(a1) generally required “the arresting law enforcement agency” to fingerprint “a person charged with the commission of a felony.”
The combined effect of these two provisions was that all felony defendants were arrested, not summoned. (Citations can’t be used to charge felonies because G.S. 15A-302 limits their use to misdemeanors and infractions.) Although by statute summonses may be used for any “crime or infraction,” and although the official commentary to the statute says that they are appropriate for use with felonies, see G.S. 15A-303 & official commentary, many people reasoned (1) that all felony defendants must be fingerprinted, and (2) they may be fingerprinted only if arrested, so (3) they must be arrested rather than summoned. Thus, the AOC summons form, AOC-CR-113, is captioned “Misdemeanor Criminal Summons,” suggesting that felonies should not be charged by summons. Not everyone agrees with this reasoning, but my impression is that it is the prevailing view.
By contrast, fingerprinting was not mandated for misdemeanor defendants, so they could be charged by summons – or by citation – if circumstances made that more appropriate than an arrest.
2015 gun bill requires fingerprinting for certain misdemeanor defendants. This session, the General Assembly passed S.L. 2015-195, a bill focused on amending the firearms laws. It altered G.S. 15A-502 to make it “the duty of the arresting law enforcement agency to cause a person charged with the commission of [specified] misdemeanors to be fingerprinted, for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS), and to forward those fingerprints to the State Bureau of Investigation.” (S.L. 2015-267 removed from the statute the phrase “for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS),” but it left the directive of the statute unchanged. Both laws are already in effect.)
Relatively few misdemeanors are covered by the new law, including driving while impaired and certain domestic-violence-related offenses. It appears that the misdemeanors were selected because they relate in some way to conditions that would prevent a person from lawfully owning a gun. For example, individuals who are subject to a DVPO or who have been convicted of a domestic violence misdemeanor are prohibited from possessing a firearm under federal law. See generally 18 U.S.C. § 922(g). And, as Shea discussed here, in some instances a DWI conviction may result in a person being ineligible to possess a firearm.
Misdemeanor drug possession included in new law. Most of the covered misdemeanors normally resulted in arrests anyhow, so fingerprinting was at least a possibility. But there’s one very significant exception: the law applies to misdemeanor possession of a controlled substance under G.S. 90-95(a)(3). I speculate that this was included in the bill because 18 U.S.C. § 922(g)(3) makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm.
A misdemeanor possession charge normally involves possessing 1.5 ounces of marijuana or less, most often half an ounce or less. Many officers prefer to issue citations for these offenses rather than making arrests. These offenses are incredibly common, with over 35,000 charges last year for possession half an ounce of marijuana or less and over 2,000 for possession of more than half an ounce but not more than 1.5 ounces.
Does the new law require arrests? A number of officers and others have asked about the meaning of the new provision. The wording of the provision is very similar to the wording of the felony fingerprinting provision, which has generally been read to require arrests and to preclude summonses for felony defendants. If the new provision is read the same way, officers would need to arrest and fingerprint rather than cite or summon every person to be charged with misdemeanor possession of a controlled substance. That means more work for officers, more work for magistrates, more work for clerks, and arrest records for more defendants. Or else it means more officers forgoing charges to avoid the burdens associated with an arrest. Of course, if that’s the law, it’s the law, and perhaps there are benefits to including more misdemeanants’ fingerprints in the system. At least one of my colleagues supports this reading.
That’s not the only possible reading of the provision, however. One could read it so say that if a person charged with a misdemeanor drug possession offense is arrested, he or she must be fingerprinted, but not to require an arrest. In support of this view, one could argue that the legislature knows how to enact clear mandatory arrest provisions, see G.S. 50B-4.1(b) (officers “shall arrest” when they develop probable cause to believe a person has violated a DVPO), yet it didn’t do so here. My impression is that many law enforcement agencies are adopting this interpretation, and it’s hard to see how such an interpretation would come before a court for review. Does that open the door to reconsidering the practice regarding felonies? At least one of my colleagues thinks that it should.
I have also heard the suggestion that an officer may still cite or seek a summons for a person charged with a misdemeanor drug possession offense, but that the officer must fingerprint the person anyhow. I don’t think that interpretation works, as it would render the reference to the “arresting law enforcement agency” meaningless. Also, as a practical matter, roadside fingerprinting would be a nightmare.
This strikes me as a situation in which a bill may have unintended consequences that are greater than its intended consequences. But then again, perhaps the General Assembly intended all of the bill’s consequences – with little legislative history available, it is hard to know. As always, readers’ insights and perspectives are welcome.

New Driving While License Revoked Law

On December 1, 2015, the law changes on Driving While License Revoked.  The purpose of this new law is to eliminate the snowball affect of driving while license revoked when the revocation is not due to impaired driving.

Below is a great article from Shea Denning at the North Carolina School of Government.

The General Assembly ratified the North Carolina Drivers License Restoration Act last week and submitted it to the Governor. If the act becomes law, it will relieve defendants convicted of certain types of driving while license revoked of the mandatory additional license revocation that has historically followed such convictions. Proponents for a change in the law argued that people convicted of driving while license revoked under current law drove during the revocation period out of necessity and then became locked in an unending cycle of license revocation.

The cycle developed this way:  A person was convicted of an offense requiring revocation of the person’s license.  You can find a chart of such convictions here. The person drove during the initial revocation period, sometimes because he or she had no other way to travel to and from work. The person was stopped by a law enforcement officer and charged with driving while revoked. Upon conviction, the person’s license was automatically revoked for an additional year. During that additional year, the person again was convicted of driving while license revoked. This time, the additional revocation period was two years.  The person’s third conviction for driving while license revoked led to a permanent license revocation.
H 529 ends that cycle for some defendants, effective for convictions on or after December 1, 2015.
Recodification. The legislation assigns each of the two types of driving while license revoked currently codified in G.S. 20-28(a) to its own subsection.  Driving while license revoked for impaired driving, a Class 1 misdemeanor, is codified in amended G.S. 20-28(a1).  Driving while license revoked generally, a Class 3 misdemeanor, remains in G.S. 20-28(a).
The punishment for driving without reclaiming a license is moved to G.S. 20-28(a2), and the offense of driving after notification or failure to appear is codified in new subsection (a3).
The chart below sets forth the various subsections as recodified by H 529.

G.S. 20-28(a)	Driving While License Revoked	Class 3 misdemeanor
G.S. 20-28(a1)	Driving While License Revoked for Impaired Driving	Class 1 misdemeanor
G.S. 20-28(a2)	Punishment for Driving Without Reclaiming License	Class 3 misdemeanor
G.S. 20-28(a3)	Driving After Notification or Failure to Appear	Class 1 misdemeanor

If H 529 becomes law, a person convicted of driving while license revoked under G.S. 20-28(a) on or after December 1, 2015 will no longer be subject to a mandatory additional period of license revocation. Persons convicted of violating G.S. 20-28(a1) or (a3) still will be subject to the automatic revocation periods described at the outset of this post.  Persons punished for driving without reclaiming a license are not subject to an automatic additional revocation period under current law or H 529.
A person’s license also is subject to automatic revocation under current G.S. 20-28.1 if the person is convicted of a motor vehicle moving offense that was committed while the person’s license was revoked.  H 529 amends G.S. 20-28.1(a) to provide that a violation of G.S. 20-7(a) (no operator’s license), 20-24.1 (failure to appear or pay for motor vehicle offense), or G.S. 20-28(a) or (a2) shall not be considered a motor vehicle moving offense unless the offense occurred in a commercial motor vehicle or the person held a commercial driver’s license at the time of the offense.
Ignition interlock amendment. Not all of the provisions of H 529 afford relief to defendants, however. The act amends G.S. 20-17.8(f) to specify that a person subject to an ignition interlock restriction who violates the restriction commits the offense of driving while license revoked for impaired driving under G.S. 20-28(a1) and is subject to punishment and license revocation as provided in that section. This is a change from what current law provides.
The act also amends G.S. 20-179.3(j) to provide that the holder of a limited driving privilege who violates any of its restrictions commits the offense of driving while license revoked for impaired driving under G.S. 20-28(a1) and is subject to punishment and license revocation as provided in that section.  This is a technical change that accounts for the recodification but does not change treatment of limited driving privilege violations under current law.
DWI sentencing change. Finally, the act makes a corresponding change to the grossly aggravating factor in G.S. 20-179(c)(2) that elevates the punishment for DWI when a person is driving at the time of the offense with a license that is revoked for impaired driving.  Amended G.S. 20-179(c)(2) lists as a grossly aggravating factor “[d]riving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20-28(a1), and the revocation was an impaired driving revocation under G.S. 20-28.2(a).” The last clause is confusing. Is it surplusage since G.S. 20-28(a1) only applies to persons whose licenses are revoked for an impaired driving revocation or for an ignition interlock violation?  Or does it operate to exclude ignition interlock violations from the grossly aggravating factor since they are not listed as impaired driving revocation under G.S. 20-28.2(a)? Perhaps a technical corrections bill later in the session will clear this up.

Vehicular Public Area

To get a ticket, you must be driving on a street or highway or Public Vehicular Area.

Great article by Shea Denning of the NC School of Government.

After the legislature broadened the definition of “public vehicular area” in 2006 to include areas “used by the public for vehicular traffic at any time,” many wondered whether there was any place where one could drive a vehicle (other than a private driveway) that wasn’t considered a public vehicular area. There was even some doubt about those private driveways, since members of the public can drive into them and sometimes do so even without an invitation from the resident. Moreover, North Carolina’s appellate courts had broadly interpreted the term for years—even when it was more narrowly defined.  But the court of appeals put the brakes on an overly expansive reading of public vehicular area last year, rejecting, in State v. Ricks, ___ N.C. App. ___, 764 S.E.2d 692 (2014), the State’s argument that all property used by the public for vehicular traffic is, in fact, a public vehicular area.
The facts in State v. Ricks. William Ricks was indicted for habitual impaired driving after a Rocky Mount police officer discovered him impaired while astride his moped with the engine running. Ricks and his moped were on a dirt driveway in a vacant lot located at an intersection in the city’s business district. The driveway, or “cut through,” extended across the lot from the street on one side of the intersection to the street on the other side. The officer who arrested Ricks testified that he had seen people walk and ride bicycles across the lot by using this drive. He said it was wide enough to drive a motor vehicle through, explaining that he had driven his patrol car into the cut through to approach Ricks. The officer said he had seen other cars use the cut through to turn around.
At trial, Ricks moved to dismiss the charges on the basis that the State failed to prove that he was in a public vehicular area. The trial court denied defendant’s motion. The trial court instructed the jury that a public vehicular area was “any area within the State of North Carolina used by the public for vehicular traffic at any time including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley or parking lot.” Defense counsel attempted to provide the full statutory definition of public vehicular area in closing arguments, but the State objected and was sustained.
The defendant appealed, arguing that the trial court erred in denying his motion to dismiss, in instructing the jury concerning the definition of a public vehicular area, and in sustaining the State’s objections to his closing argument.
Dirt drive NOT a public vehicular area. The court of appeals in Ricks concluded that the trial court erred in denying the defendant’s motion to dismiss as there was insufficient evidence that the cut through was a public vehicular area.
The State argued on appeal as it had below that it was required only to show that “the area [was] used by the public for vehicular traffic at any time,” and that its evidence was sufficient to meet that burden.  G.S. 20-4.01(32)(a). The officer had seen people walk and ride bicycles across an area of the vacant lot. That traffic maintained a dirt path, or cut through, wide enough to drive on. The court of appeals disagreed.
Illustrative examples set the standard. Although the examples in G.S. 20-4.01(32)(a) of areas used by the public for vehicular traffic are listed “by way of illustration and not limitation[,]” the court of appeals characterized them as “a component of the relevant definition” that “cannot be ignored.” Id. at ___; 764 S.E.2d at 696.
Those examples are driveways, roads, alleys and parking lots on the premises of:

• a hospital, college, school, orphanage, or church,
• a park, institution, or facility maintained and supported by the State or any of its subdivisions,
• a business, office building, or residential or municipal establishment providing parking space whether the business is open or closed; or
• federal property under the State’s jurisdiction.

The examples reveal that the definition contemplates “areas generally open to and used by the public for vehicular traffic as a matter of right or areas used for vehicular traffic that are associated with places generally open to and used by the public, such as driveways and parking lots to institutions and businesses open to the public.” Id. at ___; 764 S.E.2d at 696. Furthermore, the court noted that a separate subsection of the public vehicular area definition incorporates “‘private property used by vehicular traffic and designated by the private property owner as a public vehicular area.’” Id. (quoting G.S. 20-4.01(32)(d)). If every area used by the public for vehicular traffic at any time is a public vehicular area, this separate subsection would be superfluous, reasoned the court.
As to the particular area at issue, the court noted that the State presented no evidence as to its ownership or that it had been designated as a public vehicular area pursuant to G.S. 20-4.01(32)(d).  The court explained that a vacant lot was dissimilar to any of the examples provided in G.S. 20-4.01(32)(a) and rejected the idea that foot and bicycle traffic across the area was enough to turn it into a public vehicular area. The court held that to meet the definition of a public vehicular area in G.S. 20-4.01(32)(a), there must be evidence demonstrating that the property is similar in nature to the illustrative examples in the statute. The State failed to produce any such evidence in Ricks.
Finally, the court noted that even though it was reversing the defendant’s conviction for insufficient evidence, the trial court erred in abbreviating the definition of public vehicular area in the instructions to the jury and by preventing the defendant from arguing his position based on the remaining language in G.S. 20-4.01(32)(a).
What’s the significance?  Before the amendments in 2006, G.S. 20-4.01(32)(a), defined as a public vehicular area “an area generally open to and used by the public for vehicular traffic . . . .”  G.S. 20-4.01(32)(a) (2005) (emphasis added). Ricks in some measure restores that definition notwithstanding the amendment of the statute. Thus, driveways and parking areas on private property that is not the premises of a business, institution, or residential establishment are not public vehicular areas unless they have been formally designated as such.

Fake IDs

Great article on consequences of using a fake ID.
Thank you to Shea Denning for her work.

Fake IDs were ever-present on campus when I was an undergraduate. There were several varieties: a “novelty” driver’s license obtained from a private vendor, a doctored version of the underage person’s real driver’s license, a duplicate driver’s license from an older relative, friend or acquaintance who resembled the underage person, or, the gold standard: a DMV-issued driver’s license with the underage person’s picture but an older person’s name, address, and birthdate. These days, on-line vendors hawk fake IDs, and facial recognition software makes it nearly impossible to obtain the gold standard fake ID from DMV. Otherwise, not all that much has changed in the collegiate fake-id market.
Often an underage person’s use of fraudulent identification leads to charges that are purely alcohol-related, such as the unlawful purchase or consumption of alcohol by an underage person. But other criminal charges may stem directly from the use of the fake ID.
G.S. 18B-302(e) makes it a Class 1 misdemeanor to use fraudulent identification to do any of the following:
(1) enter or attempt to enter a place where alcoholic beverages are sold or consumed,
(2) obtain or attempt to obtain alcoholic beverages, or
(3) to obtain or attempt to obtain permission to purchase alcoholic beverages.
A conviction under G.S. 18B-302(e) triggers a mandatory one-year revocation of the person’s driver’s license.
In addition, G.S. 20-30(3) makes it a Class 2 misdemeanor to display or represent as one’s own a driver’s license not issued to the person displaying it. DMV may suspend a person’s driver’s license for up to one year for conviction of this offense. G.S. 20-16(a)(6); 20-19(c).
A person who provides fraudulent identification for another person’s use also could face criminal charges. A person who allows someone else to use a driver’s license or other identification that was issued or given to that person violates G.S. 18B-302(f) if the person who is allowed to use the license or identification violates or attempts to violate the law barring the purchase, possession or consumption of alcohol by someone under 21 years of age. A violation of G.S. 18B-302(f) is a Class 1 misdemeanor that also triggers a mandatory revocation of the offender’s driver’s license for one year.
And G.S. 20-30(2) makes it a Class 2 misdemeanor to counterfeit, sell, lend to, or knowingly permit the use of a driver’s license by a person not entitled to its use. DMV may suspend a person’s license for up to one year for conviction of this offense.
Vendors face more serious consequences.The sale of a simulated driver’s license is a Class I felony.  G.S. 20-30(7).  One advocate for stricter driver’s license requirements opined earlier this year that the proliferation of counterfeit driver’s licenses from China created concerns that eclipsed underage drinking, arguing that their issuance threatened the United States’ security infrastructure.
Not identity theft. An underage person’s use of another person’s driver’s license to gain admission to a bar or club or to procure alcohol does not appear to satisfy the elements for identity theft under G.S. 14-113.20. To commit identity theft, a person must obtain, possess, or use another person’s identifying information to make financial transactions, to avoid legal consequences, or to “obtain anything of value, benefit or advantage.” While one could argue that an underage person using another’s identification obtains the “benefit” of access to certain establishments and to alcoholic beverages, such access differs markedly from the sort of financial, material, or legal benefit generally sought in connection with the improper use of another’s identity. Thus, it seems unlikely to have been the sort of benefit or advantage envisioned by the legislature when it added this language to the identity theft statute in 2002.

Failure to Stop for Stopped School Bus

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Every year when school starts, I like to remind everyone about the laws for stopping for a stopped school bus.  Failure to do so is a class 1 misdemeanor.  No PJC.  Five license points, 4 insurance points.  Here is more.

 

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N.C. Department of Transportation Division of Motor Vehicles School Bus & Traffic Safety Section 1100 New Bern Avenue Raleigh, NC 27697-0001 phone: (919) 861-3109 fax: (919) 715-3306 www.dmv.dot.state.nc.us

Original brochure designed and produced by the North Carolina Department of Transportation, Division of Motor Vehicles, School Bus & Traffic Safety Section

For a copy of this brochure,
call (919) 861-3109.

North Carolina School Bus Stop Law

STOP...It's the Law (poster & placard)
Download the North Carolina School Bus Stop Law Rack Card Report of violation of School Bus Law (G. S. 20-2 17) or

 

§ 20-217.  Motor vehicles to stop for properly marked and designated school buses in certain instances; evidence of identity of driver.

(a)        When a school bus is displaying its mechanical stop signal or flashing red lights and the bus is stopped for the purpose of receiving or discharging passengers, the driver of any other vehicle that approaches the school bus from any direction on the same street, highway, or public vehicular area shall bring that other vehicle to a full stop and shall remain stopped. The driver of the other vehicle shall not proceed to move, pass, or attempt to pass the school bus until after the mechanical stop signal has been withdrawn, the flashing red stoplights have been turned off, and the bus has started to move.

(b)        For the purpose of this section, a school bus includes a public school bus transporting children or school personnel, a public school bus transporting senior citizens under G.S. 115C-243, or a privately owned bus transporting children. This section applies only in the event the school bus bears upon the front and rear a plainly visible sign containing the words "school bus."

(c)        Notwithstanding subsection (a) of this section, the driver of a vehicle traveling in the opposite direction from the school bus, upon any road, highway or city street that has been divided into two roadways, so constructed as to separate vehicular traffic between the two roadways by an intervening space (including a center lane for left turns if the roadway consists of at least four more lanes) or by a physical barrier, need not stop upon meeting and passing any school bus that has stopped in the roadway across the dividing space or physical barrier.

(d)        It shall be unlawful for any school bus driver to stop and receive or discharge passengers or for any principal or superintendent of any school, routing a school bus, to authorize the driver of any school bus to stop and receive or discharge passengers upon any roadway described by subsection (c) of this section where passengers would be required to cross the roadway to reach their destination or to board the bus; provided, that passengers may be discharged or received at points where pedestrians and vehicular traffic are controlled by adequate stop-and-go traffic signals.

(e)        Except as provided in subsection (g) of this section, any person violating this section shall be guilty of a Class 1 misdemeanor and shall pay a minimum fine of five hundred dollars ($500.00). A person who violates subsection (a) of this section shall not receive a prayer for judgment continued under any circumstances.

(f)         Expired.

(g)        Any person who willfully violates subsection (a) of this section and strikes any person shall be guilty of a Class I felony and shall pay a minimum fine of one thousand two hundred fifty dollars ($1,250). Any person who willfully violates subsection (a) of this section and strikes any person, resulting in the death of that person, shall be guilty of a Class H felony and shall pay a minimum fine of two thousand five hundred dollars ($2,500).

(g1)      The Division shall revoke, for a period of one year, the drivers license of a person convicted of a second misdemeanor violation under this section within a three-year period. The Division shall revoke, for a period of two years, the drivers license of a person convicted of a Class I felony violation under this section. The Division shall revoke, for a period of three years, the drivers license of a person convicted of a Class H felony violation under this section. The Division shall permanently revoke the drivers license of (i) a person convicted of a second felony violation under this section within any period of time and (ii) a person convicted of a third misdemeanor violation under this section within any period of time.

In the case of a first felony conviction under this section, the licensee may apply to the sentencing court for a limited driving privilege after a period of six months of revocation, provided the person's drivers 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 drivers license is revoked or suspended under any other statute, the limited driving privilege issued pursuant to this subsection is invalid.

In the case of a permanent revocation of a person's drivers license for committing a third misdemeanor violation under this section within any period of time, the person may apply for a drivers license after two years. The Division may, with or without a hearing, issue a new drivers license upon satisfactory proof that the former licensee has not been convicted of a moving violation under this Chapter or the laws of another state. The Division may impose any restrictions or conditions on the new drivers license that the Division considers appropriate. Any conditions or restrictions imposed by the Division shall not exceed two years.

In the case of a permanent revocation of a person's drivers license for committing a second Class I felony violation under this section within any period of time, the person may apply for a drivers license after three years. The Division may, with or without a hearing, issue a new drivers license upon satisfactory proof that the former licensee has not been convicted of a moving violation under this Chapter or the laws of another state. The Division may impose any restrictions or conditions on the new drivers license that the Division considers appropriate. Any conditions or restrictions imposed by the Division shall not exceed three years.

Any person whose drivers license is revoked under this section is disqualified pursuant to G.S. 20-17.4 from driving a commercial motor vehicle for the period of time in which the person's drivers license remains revoked under this section.

(g2)      Pursuant to G.S. 20-54, failure of a person to pay any fine or costs imposed pursuant to this section shall result in the Division withholding the registration renewal of a motor vehicle registered in that person's name. The clerk of superior court in the county in which the case was disposed shall notify the Division of any person who fails to pay a fine or costs imposed pursuant to this section within 20 days of the date specified in the court's judgment, as required by G.S. 20-24.2(a)(2). The Division shall continue to withhold the registration renewal of a motor vehicle until the clerk of superior court notifies the Division that the person has satisfied the conditions of G.S. 20-24.1(b) applicable to the person's case. The provisions of this subsection shall be in addition to any other actions the Division may take to enforce the payment of any fine imposed pursuant to this section.

(h)        Automated camera and video recording systems may be used to detect and prosecute violations of this section. Any photograph or video recorded by a camera or video recording system shall, if consistent with the North Carolina Rules of Evidence, be admissible as evidence in any proceeding alleging a violation of subsection (a) of this section.  (1925, c. 265; 1943, c. 767; 1947, c. 527; 1955, c. 1365; 1959, c. 909; 1965, c. 370; 1969, c. 952; 1971, c. 245, s. 1; 1973, c. 1330, s. 35; 1977, 2nd Sess., c. 1280, s. 4; 1979, 2nd Sess., c. 1323; 1983, c. 779, s. 1; 1985, c. 700, s. 1; 1991, c. 290, s. 1; 1993, c. 539, s. 382; 1994, Ex. Sess., c. 24, s. 14(c); 1998-149, s. 10; 2005-204, s. 1; 2006-160, s. 1; 2006-259, s. 11(a); 2007-382, s. 1; 2009-147, ss. 1, 2; 2013-293, s. 2.)

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New Law on Probation Revokations

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New Law on Probation Violations as it applies to misdemeanors.

Great article by the NC School of Government.

Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants.
Since 2011, the rule for probation violations in North Carolina has been as follows. Revocation is permissible only for violations of the “commit no criminal offense” and “absconding” conditions. All other violations are considered “technical violations,” and the court may not revoke probation for them. Instead, the court may impose a period of “confinement in response to violation” (CRV) of 90 days for a felony or up to 90 days for a misdemeanor, or some other sanction aside from revocation (like a split sentence or electronic house arrest, for example). After a probationer has received two CRV periods, he or she may be revoked for any violation, including a technical violation. G.S. 15A-1344(d2). It’s a sort of “three strikes and you’re out” approach to minor violations.
The thing is, hardly anyone ever gets to the third technical-violation strike. (Actually, not that many people even get to the second one.) Something else usually happens first. Either the person gets revoked for a new criminal offense or absconding, or the probation period expires, or the first CRV is a so-called “terminal CRV”—meaning that it either uses up the defendant’s entire suspended sentence or that the judge affirmatively terminates the probation after the first CRV period is served. Especially for misdemeanants, whose suspended sentences often are not any longer than 90 days to begin with, many if not most first CRVs are terminal.
Realizing that the existing CRV model isn’t really compatible with misdemeanors, the General Assembly decided this session to abandon it—at least for misdemeanors sentenced under Structured Sentencing. Under S.L. 2015-191, signed by the governor last week, CRV is eliminated as a probation response option for Structured Sentencing misdemeanants placed on probation on or after December 1, 2015.
With CRVs eliminated, something else needed to serve as the “strike” that would put a misdemeanant technical violator on the path to revocation. Enter the “quick dip.”
Under the amended law, a judge may impose jail confinement under G.S. 15A-1343(a1)(3)—the “community and intermediate probation condition” colloquially known as a “quick dip” in the jail—in response to a probation violation other than a new crime or absconding. The quick dip, described here, is short-term jail confinement served in two- or three-day increments that may total no more than six days in any month, and that may be used in no more than three separate months of a person’s probation. A probation officer may also impose a quick dip through delegated authority under G.S. 15A-1343.2(e) (community punishment cases) and G.S. 15A-1343.2(f) (intermediate punishment), if the probationer waives his or her right to a hearing on the violation.
Once a probationer has received two periods of quick dip confinement for a technical violation, he or she may, under the revised law, be revoked for any subsequent violation. The second quick dip must have been imposed for a violation that occurred after the defendant served the first dip. With that in mind, the judge or probation officer imposing the first batch of dip confinement probably wouldn’t want to use up the full complement of available dip days, because that would leave no dip time available for imposition of a qualifying second dip after service of the first one. I don’t think that’s likely to be a problem in practice; my sense is that most dip confinement is ordered only two or three days at a time. Remember that a judge may also impose dip confinement at sentencing or in response to a new crime or absconding, but under revised G.S. 15A-1344(d2), those dips won’t qualify as technical violation strikes.
The amended law makes no changes to the existing rule for felony or DWI probationers, or for the tens of thousands of misdemeanor defendants who will already be on probation as of December 1. For them, CRV will remain as a permissible option for technical violations, with revocation allowed for any violation after receipt of two CRVs. As has become the norm, probation officers and court officials will have to take great care to use the proper law (and the proper forms) applicable to the individual probationer. I’ll work on a set of three-dimensional tables that will tell you proper law to apply given a particular offense, offense date, sentencing date, and violation date. Fear not; you’ll all have 3-D printers by the time I finish it.
The new approach is probably a better fit for short misdemeanor sentences than the existing CRV structure, but it may bring us back to square one on some of the interpretive questions we had regarding CRVs. For example:

• Can a defendant appeal quick dip confinement, either to superior court for a de novo hearing, or from superior court to the court of appeals?
• If a judge orders a quick dip at a violation hearing, may (or must?) the judge credit any pre-hearing confinement toward the dip? Or is the credit prohibited?
• What about dips imposed on a person on probation for multiples offenses; they must run concurrently with one another, G.S. 15A-1343(a1)(3), but does the defendant get jail credit against all of the cases if he or she later gets revoked?
• Does the rule apply equally to unsupervised cases, where there is no probation officer to impose dips through delegated authority? (I have never read the reference to defendants “under supervision” in G.S. 15A-1344(d2) to limit the rules on revocation eligibility to supervised probationers. G.S. 15A-1344(a) sets out the baseline rule for revocation eligibility, and it is not limited to supervised offenders, and G.S. 15A-1341(b) says that, in general, unsupervised probationers are subject to the same rules as the supervised ones.)

I also wonder whether the increased emphasis on quick dips may give rise to a constitutional challenge (background here). I’m not aware of any pending litigation along those lines—even though probation officers have imposed over 5,000 quick dips statewide since 2011. But that could change once dips mean more. It’s also possible, of course, that probationers will become less likely to consent to an officer-imposed quick dip, knowing that it puts them on the path to revocation. My understanding is that under current law, very few probationers refuse to consent to a probation officer’s quick dip proposal.
Finally, even though the duration of the quick dip makes it a better intervention than CRV in short misdemeanor cases, a defendant is still entitled to a full-blown violation hearing before the court may order one. So we’re still left with a world where it could take three hearings (dip, dip, then revoke) to fully activate a relatively short sentence. With that in mind, I wouldn’t be surprised to see an increase in “terminal splits” or “terminal contempt” ordered in response to defendant’ first technical violations. Court (and counsel) time—not suspended sentence length—may be the true limiting factor.

License Plates

www.kisslinglaw.com

Nice article on the issue of the Confederate License Plate in NC.  Thank you to Shea Denning.

Following the shooting deaths of nine black worshippers in June at a historically significant Charleston church and South Carolina’s subsequent removal of the Confederate flag from the grounds of the State House, some have called upon North Carolina officials to stop issuing specialty license plates featuring the Confederate flag. N.C. Governor Pat McCrory has said that the General Assembly must pass legislation to halt issuance of the plates. One veteran legislator was quoted in this News and Observer story as saying that he never would have voted to authorize such a special plate and never recalls seeing such legislation. A spokesperson for another legislator was quoted as saying that the Governor was empowered to end issuance of the plates. Who’s right?
As it turns out, the answer is not obvious.
Where’s the statute? There’s a reason legislators might not remember authorizing license plates featuring the Confederate flag. They never specifically did so. Indeed, G.S. 20-79.4(b) lists 250 types of special registration plates that DMV “shall issue.” None of these plates feature the Confederate flag.
So why were Confederate flag plates ever issued? The General Assembly authorized issuance of license plates identifying civic clubs and displaying the emblem of the identified club in a provision currently codified as G.S. 20-79.4(b)(42). That statutory subdivision specifies that license plates are “[i]ssuable to a member of a nationally recognized civic organization whose member clubs in the State are exempt from State corporate income tax.” It lists, as examples of these types of clubs, Jaycees, Kiwanis, Optimist, Rotary, Ruritan, and Shrine. The statute requires the plate to “bear a word or phrase identifying the civic club and the emblem of the civic club,” and provides that DMV may not issue a civic club plate unless it receives at least 300 applications for that plate.
After receiving tax-exempt status from the North Carolina Department of Revenue, the North Carolina chapter of the Sons of Confederate Veterans (SCV) applied to DMV for issuance of a license plate bearing its emblem:  the Confederate flag. DMV refused to issue the plates.
SCV sued in superior court and won. The trial court ordered DMV to issue SCV registration plates once it received the requisite 300 applications. DMV appealed, and a majority of the court of appeals affirmed in North Carolina Division of Sons of Confederate Veterans v. Faulkner, 131 N.C. App. 775 (1998). The appellate court determined that SCV was of a similar character as the qualifying civic clubs listed in the “civic club” subdivision of G.S. 20-79.4(b) and thus was a “nationally recognized civic organization” within the meaning of that statute. Thus, the court determined that SCV qualified for special registration plates. The court noted that “[w]hether the display of the confederate flag on state-issued license plates represents sound public policy is not an issue presented to the Court in this case. That is an issue for our General Assembly.”
Significantly, however, the court did not rule in favor of SCV on constitutional grounds. While it noted that “allowing some organizations which fall within section [G.S. 20-79.4(b)(42)’s] criteria to obtain personalized plates while disallowing others equally within the criteria could implicate the First Amendment’s restriction against content-based restraints on free speech,” the court avoided the need for constitutional analysis when it determined that the statute required issuance of the plates.
Judge (and subsequent Justice) Timmons-Goodson dissented on the basis that SCV did not satisfy the statutory definition of civic club. DMV evidently declined to exercise its right to appeal the divided decision to the state supreme court.
What happened next?  DMV followed the court’s directive. The News and Observer reports that more than 2,000 such plates have been issued.
Wasn’t there just a U.S. Supreme Court case involving this very issue? Yes. The United States Supreme Court held last month in a 5-4 decision that the First Amendment did not require the State of Texas to issue license plates featuring the Sons of Confederate Veterans emblem. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). The high court determined that specialized license plates were a form of public speech by the State government rather than private speech by the organizations whose logos were featured on license plates. Thus, the majority concluded that Texas could “choose how to present itself and its constituency.”
Had the North Carolina court of appeals based its decision that DMV was required to issue SCV license plates on a determination that to do otherwise would constitute viewpoint discrimination in violation of the First Amendment, the United States Supreme Court’s determination in Sons of Confederate Veterans would overrule that determination. But the North Carolina Court of Appeals did not rest its holding on that ground. Instead, as noted above, it determined that the statutory provision directing DMV to issue special license plates for civic clubs that met the statutory definition required issuance of the Confederate flag plates.
So who is right?  If G.S. 20-79.4(b)(42) afforded DMV discretion in determining which civic organizations were entitled to special plates, there would be no question that the governor could direct DMV, an agency under his control, to stop issuing Confederate flag plates. But the court of appeals in Sons of Confederate Veterans did not construe G.S. 20-79.4(b) as allowing DMV to select which civic groups were eligible for special plates. That’s presumably why the Governor has concluded that he cannot tell DMV to stop issuing the plates unless the General Assembly amends the statute.
On the other hand, considering the history behind the issuance of these plates, it isn’t hard to understand why some legislators disagree.The legislature never approved the confederate plates, DMV issued them only after the state court of appeals said it had to, and the U.S. Supreme Court just held, in a similar case, that Texas was not required to issue Confederate flag plates. Taking a broad view of the matter and discounting the specific reasoning of the state court opinion, one might conclude that the Governor could act on his own to stop DMV from handing out Confederate plates.