What is the biggest danger to Teen Drivers?

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A local teen was recently charged with Vehicular Manslaughter as a result of turning left in front of a truck causing the death of a classmate who was in the car.  It is of great concern when negligent behavior is seen as criminal.  This young man was not impaired nor doing anything dangerous.  I hope the DA does the right thing and dismisses the charges on this.  A simple failure to see before turning should not result in  a young man going to jail.  He will have to live with this the rest of his life.  That should be enough.

Below are two articles concerning the issue.  One from Shea Denning and the other from WRAL

By Shea Denning

The fields of the Capital Area Soccer League were a sea of blue again last night.  Players of all ages shelved their regulation orange jerseys and wore blue—Laura Yost’s favorite color—instead. They wore blue last week too.  Last week’s blue was to support fellow soccer player Laura, who was hospitalized after she was critically injured in a car accident on her way to school.  Sadly, last night’s blue was to honor her memory.  Fifteen-year-old Laura died early Tuesday morning.
Laura, a sophomore at Panther Creek High School in Cary, rode in the back seat of her friend Spencer Saunders’ car last Tuesday.  Her older brother Ryan rode in the front passenger seat.  Spencer was turning left off of Highway 55 onto McCrimmon Parkway in Cary when a dump truck traveling in the other direction crashed into the passenger side of his vehicle.  Reports indicate that the accident was Spencer’s fault as he failed to yield to the oncoming dump truck when turning left as required by G.S. 20-155(b). No charges have yet been filed in the case, but police reportedly have talked to the district attorney about charging Spencer.
Failing to yield when turning left is an infraction, not a crime.  The maximum penalty is $100.  A person cited for this offense may pay a $35 fine and court costs and resolve the charge without having to appear in court.  But now that Laura has died, Spencer might be charged with a more serious offense—misdemeanor death by vehicle—a Class A1 misdemeanor, for which a first-time offender could receive up to 60 days imprisonment.  Because Spencer is 16, he may be charged with this crime and tried as an adult.
Anecdotally, I’ve heard district court judges say that misdemeanor death by vehicle is among the most difficult misdemeanor crimes to sentence. By its very definition, the crime involves a violation of any State traffic law or local traffic ordinance, other than impaired driving, that causes the death of another.  On one side of the scale, there often rests a defendant with no criminal intent. On the other, there is a lost life.  Sometimes the victim’s family views a harsh sentence as necessary to justice.  Sometimes the victim’s family sees the ends of justice differently.  I’ve never been a prosecutor, so I don’t know how much the initial charging decision is based on the wishes of family members.  In my time as an assistant federal public defender, I learned that there were rules of thumb about certain degrees of loss.  If a client was alleged to have fraudulently obtained money that exceeded a certain amount, pleas for reduced charges or deferred prosecution were rebuffed, regardless of the client’s youth, lack of criminal history, or other mitigating circumstances.  It may be the same for district attorneys when a life is lost as a result of traffic violations that otherwise would not even cross the threshold of criminal culpability.  But perhaps the lines are not so clearly drawn.
One might expect that regardless of what charges may come, Spencer Saunders already is suffering mightily. He has expressed profound remorse in posts to his Twitter account that have been reprinted in the news. Spencer is 16. He is an inexperienced driver. He made a mistake that turned out to be fatal for his friend. Should criminal charges follow?
The prospect of criminal charges against Spencer would be no different under the raise the age bill that passed the NC House last session.  While House Bill 725, if enacted, would have expanded juvenile jurisdiction to 17 year olds in its first year and 18 year olds in its second, it would have done so only for misdemeanors and infractions other than violations of the state’s motor vehicle laws.
Cary Police Lieutenant Steve Wilkins said that they were going to allow the “dust [to] settle” with the families before proceeding with any charges.  So we don’t yet know the State’s view of what justice requires in this tragic case.

Raleigh, N.C. — Texting and driving isn't the leading cause of distracted driving among teens.
It's other teens, according to the U.S. Centers for Disease Control and Prevention, which says motor vehicle crashes are the leading cause of death for those between ages 16 and 19.
"Cellphones get all the attention, but it's really teen passengers that pose the biggest potential distraction for teen drivers," Adam Goodwin, senior researcher at the University of North Carolina Highway Safety Research Center, said Thursday – two days after Panther Creek High School sophomore Laura Yost died from injuries she suffered in a recent wreck.
Cary police say the driver, 16-year-old Spencer Saunders, failed to yield to oncoming traffic – and although it's unclear what contributed to the wreck, Yost's death highlights adolescent driver-safety concerns.

NC's graduated licensing
Graduated licensing places requirements and restrictions on newly licensed drivers under age 18 until they have enough experience to comfortably drive a vehicle.
There are four levels:
Limited learner's permit allows for supervised driving but restricts it from 5 a.m. to 9 p.m. for the first six months.
Limited provisional license allows unsupervised driving between 5 a.m. and 9 p.m. No more than one passenger under 21 is allowed and use of mobile devices is prohibited.
Full provisional license allows for unsupervised driving at any time but prohibits the use of mobile devices.
Full driver's license
More information on graduated licensing is available from the North Carolina Department of Transportation.

Older drivers, researchers say, are more experienced and can anticipate problems behind the wheel. But a younger driver doesn't have the same skill to make the same driving decisions while being distracted.
Using in-vehicle cameras to observe driver and passenger behavior, the Highway Safety Research Center found that teens are six times more likely to be in a situation requiring an evasive maneuver to avoid a crash when passengers are loud. They're three times more likely when they are rambunctious.
"If you have multiple teens in a vehicle, teens are much more likely to be in a serious crash," Goodwin said. "It takes years of behind-the-wheel practice before you see the driving world in the same way an experienced driver does."
From 2003 to 2012, the number of fatalities among North Carolina drivers under the age of 20 decreased by 42 percent, according to the Highway Safety Research Center.
In 2012, for example, 170 drivers 20-years-old or younger were involved in a fatal crash – a decrease of 3 percent from 2011.
Researchers believe the state's graduated driver licensing system has played a big factor in the decrease.
The system – 42 other states have similar programs – imposes on teen drivers restrictions that are gradually lifted as young drivers gain experience behind the wheel.
For example, teens with a "limited provisional license" aren't allowed to drive between 9 p.m. and 5 a.m. without an experienced driver next to them. They're also limited to who can be in the car with them.
But highway safety researchers say that young drivers are still over-represented in crashes and fatalities.
In 2012, 16- to 20-year-olds made up 7 percent of North Carolina's population, but the age group represents 13 percent of all crashes and 9 percent of fatal crashes – most of which occurred near 7 a.m. and 3 p.m. – the same times teens are driving to and from school.

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Amanda Lamb

Passing a Stopped School Bus

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The penalties for passing a stopped school bus in North Carolina are quite severe.  Four Driving Points, Four Insurance Points.  This will cause most peoples insurance to double for the next three years.  Most District Attorneys will not reduce or dismiss the charge and the judge is precluded from granting a Prayer for Judgment Continued.  So what do you do if charged?  The best thing to do is plead not guilty and make the State prove their case.

The State must prove the following:

1.  The bus is used for transporting children to and from school on a regularly scheduled route.  So no activity buses.

2.  The bus must be primarily yellow and must say "School Bus" on the front and back at or near the roof line.

3.  The bus must have flashing red lights in the front and back.

4.  The bus must have a mechanical stop signal.

If you are given a ticket by an officer who saw you pass the bus, it will be hard for them to testify that the bus had flashing red lights on the front and back.  There is literally no viewing point where an officer could see you pass the bus and see the flashing red lights on both the front and back of the bus.

In addition, while you must stop if you are traveling the same direction as the bus, you do not have to stop if the bus is on the opposite side of the street, the street is two or more lanes in each direction and there is a center turn lane or physical barrier between the two different directions of travel. 

Furthermore, the bus driver cannot let out or accept children in the lane that is not closest to the curb.  As a result, it should not be possible for you to pass the bus on the right side of the bus.

Accident Assocated with DWI

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Here is a great article on what happens when you are involved in an accident while driving while impaired in North Carolina.  Again, thanks to Shea Denning from the NC School of Government.

Most impaired drivers arrive at their destinations without harming themselves or anyone else.  And few such drivers are actually stopped by police.  That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive safely.  Young adult males were even more likely to engage in this behavior, with 24 percent of men aged 21 to 24 reporting having done so in the past year.
Though most impaired drivers don’t crash, newspapers are replete with tales of those who do, often with tragic consequences.  Four hundred and two people died in alcohol-impaired driving fatalities in North Carolina in 2012.  Nationwide that year, more than 10,000 people were killed in crashes involving an impaired driver—31 percent of the total traffic fatalities for the year. Impaired drivers themselves are killed most often in such crashes, comprising 65 percent of the deaths in 2012, with passengers in their vehicles a distant second, making up 16 percent of the deaths.  Occupants of other vehicles accounted for 11 percent of fatalities.
When a person drives while impaired in North Carolina and proximately causes the death of another, the person may be charged with one or more felony offenses, including second-degree murder, aggravated felony death by vehicle, felony death by vehicle, and involuntary manslaughter as well as misdemeanor impaired driving.  In 2013, 23 charges of aggravated felony death by vehicle and 130 charges of felony death by vehicle were filed in North Carolina.
Questions often arise at sentencing regarding whether a person may be separately punished for multiple felony convictions when each is based upon the defendant’s driving while impaired and causing the death of a single other person, as well as the underlying crime of misdemeanor DWI.
Below are the rules governing sentencing for such convictions.
Second degree murder. When a person is convicted of second degree murder based upon driving while impaired, the court must arrest judgment for a conviction of involuntary manslaughter, aggravated felony death by vehicle or felony death by vehicle based on the same incident and the same death. The person may not be sentenced for involuntary manslaughter because the offense is a lesser-included offense of second degree murder, and the legislature has not sanctioned cumulative punishment for such offenses.  The person may not be sentenced for aggravated felony death by vehicle or felony death by vehicle, both Class D felonies, because the governing statute, G.S. 20-141.4(b), authorizes punishment under that statute “unless the conduct is covered under some other provision of law providing greater punishment.” State v. Davis, 364 N.C. 297, 304 (2010). Thus, punishment may be imposed for the greater offense of second-degree murder, a Class B2 felony in this circumstance, but not the lesser offenses of aggravated felony death by vehicle or felony death by vehicle.  In addition to imposing a sentence for second-degree murder in such cases, the court may sentence the defendant for the underlying misdemeanor DWI, which is an offense with elements distinct from those required to support a conviction for second-degree murder.
Felony death by vehicle. If a person is convicted of aggravated felony death by vehicle or felony death by vehicle (both Class D felonies, though the former conviction must be punished in the aggravated range) and involuntary manslaughter based upon a single incident of driving while impaired that results in the death of another, the court must sentence the defendant pursuant to G.S. 20-141.4 and may not impose a sentence for involuntary manslaughter based on the same death.  Instead, the court must arrest judgment for the conviction for involuntary manslaughter, a Class F felony, which merges into the conviction of felony death by vehicle.  State v. Lopez, 363 N.C. 535, 536, 681 S.E.2d 271, 272 (2009).
The court may not impose a sentence for a conviction of misdemeanor impaired driving based on the same incident either, since it is a lesser included offense of both aggravated felony death by vehicle and felony death by vehicle, and is not an offense for which the legislature has not authorized cumulative punishment.
Similar sentencing questions arise in less serious cases when person is convicted of several misdemeanor offenses arising from a single incident of impaired driving, such as impaired driving under G.S. 20-138.1, impaired driving in a commercial motor vehicle under G.S. 20-138.2, or driving after consuming by a person under 21 under G.S. 20-138.3.
Impaired driving in a commercial motor vehicle.  When a person is convicted of misdemeanor impaired driving and impaired driving in a commercial motor vehicle based on a single incident of driving, the person must be sentenced for both offenses but the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S 20-138.1.
Driving after consuming. Driving by a person under 21 years old after consuming alcohol in violation of G.S. 20-138.3 is not a lesser included offense of impaired driving under G.S. 20-138.1.  Thus, a person convicted of G.S. 20-138.3 (a Class 2 misdemeanor) and an offense involving impaired driving based on a single incident of driving may be sentenced for both offenses. The aggregate punishment imposed by the court, however, may not exceed the maximum applicable to the offense involving impaired driving.
General Deterrence. Those are the rules for dealing with compounded punishment for a compounded crime.  It is difficult to know their general deterrent effect.  And general—rather than specific—deterrence seems the appropriate focus as most drivers involved in fatal impaired driving crashes do not have a previous DWI conviction—at least not in the recent past as measured by the federal government.  The National Highway Traffic Safety Administration reported in December 2013 that 93 percent of the drivers involved in fatal crashes had no previous DWI convictions, based on Fatality Analysis Reporting System data that reports DWI convictions occurring up to three years before the date of the crash.

Sharing the road with bicycles

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Drivers are often urged to share the road.  I sometimes wonder if bike riders believe they have to share the road with drivers based upon my recent experience with trying to get around three bikers riding three wide on a back road last Saturday.  Here is a great review of the laws and how they pertain to the rider and driver.

By Shea Denning

Most avid bicyclists have more than one tale of a close encounter with a motorist who does not care to—or does not know how to—safely share the road with a bicycle. The News and Observer reported here that a group of Orange County cyclists accused a pick-up truck driver of intentionally slamming on brakes in front of the group as they were driving down a rural two-lane road in June.  One of the cyclists fell from his bike and was injured, though not seriously. The cyclists pressed charges. Video footage recorded by a cyclist in the other Orange County depicting his close encounter with a pick-up truck and a Gatorade bottle hurled from its passenger window went viral in July. In the California case, the sheriff’s department recommended charges against both the truck passenger and the bicyclist, who was suspected of using offensive words in public that were likely to provide a violent reaction.
For their part, motorists complain of cyclists who ignore traffic laws and act oblivious to the presence of larger motorized vehicles, making it difficult to drive at a reasonable speed and avoid a collision.
Whether they like it or not, motorists and bicyclists have to share space.  Below are some of the rules they must follow.
Cyclists. Bicycles are vehicles for purposes of the state’s motor vehicles laws; thus, their riders generally are subject to the rules of the road and other provisions of Chapter 20.  G.S. 20-4.01(49).
This means that bicycles ridden on public streets and highways must be ridden on the right half of the roadway or in the right-hand lane of a multi-lane road if proceeding at less than the legal maximum speed limit (G.S. 20-146); bicycle riders must stop at stoplights and signs (G.S. 20-158); and bicycle riders may not pass vehicles on the right, unless the bicycle is being ridden in a separate lane (G.S. 20-149(a)).
In addition, bicycle riders, like other drivers, must signal before starting, stopping or turning from a direct line or changing lanes on street, highway, or public vehicular area—if the operation of any other vehicle may be affected by the movement. G.S. 20-154.  Hand signals as described in G.S. 20-154(d) suffice, and must be given continuously for the last 100 feet traveled before the stop or turn.
Motorcycles may be driven two abreast in a single lane, see G.S. 20-146.1, but no provision specifically authorizes—or prohibits—two-abreast cycling.  NC DOT punted on the issue in its 2004 Guide to NC Bicycle and Pedestrian Laws, noting the importance of riding “responsibly and courteously, so that cars may pass safely.”  (The guide is excellent, but it is out of date. One of the most notable changes is the amendment of the impaired driving statute, G.S. 20-138.1, to eliminate the exception for bicycles.)
Some provisions of Chapter 20 single out bicycles. G.S. 20-129(e), for instance, requires that bicycles used at night be equipped with a lighted lamp on the front that is visible from a distance of at least 300 feet and a reflex mirror or lamp on the back, exhibiting a red light visible from at least 200 feet. G.S. 20-171.2 prohibits bicycle racing on a highway unless the racing is part of an event approved by State or local authorities. The Child Bicycle Safety Act requires, while riding a bicycle on a public roadway, public bicycle path or other public right of way, that persons under 16 wear a helmet; that bicycle passengers who weigh less than 40 pounds or are less than 40 inches tall be seated in a separate restraining seat; that no person who is unable to maintain an erect, seated position be a passenger in a bicycle restraining seat; and that all other bicycle passengers be seated on saddle seats.  G.S. 20-171.7.
Motorists. Drivers of motor vehicles are, of course, subject to a host of rules set out in Chapter 20 of the General Statutes.  The rule most often implicated in connection with cyclists on the public roadways is the requirement that the driver of any vehicle overtaking another vehicle proceeding in the same direction (1) pass at least two feet to the left of the vehicle being passed and (2) not again drive to the right side of the highway until safely clear of the overtaken vehicle.  G.S. 20-149(a).  Drivers may not pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view is obstructed within a distance of 500 feet.  G.S. 20-149(b). These rules do not apply on a street or highway that has two or more lanes of moving vehicles in each direction.  G.S. 20-150.1.  Presumably, the reference to “lane” in G.S. 20-150.1 encompasses lanes designated for bicycles.
In addition, the driver of a vehicle emerging from or entering an alley, building entrance, private road, or driveway must yield the right-of-way to any person riding a bicycle who is approaching on any sidewalk or walkway extending across such alley, building entrance, road, or driveway. G.S. 20-173.
Additional Precautions.
NC DOT offers these tips (among others) for drivers who encounter cyclists on the roads:

1. Wait until the cyclist has cleared the intersection before making a turn to the right or left.  The most common error for an automobile driver is to make a left turn directly into the path of an oncoming cyclist without seeing him until it is too late to stop.  Don’t make a right turn in front of a bicyclist you have just passed.  He or she may be forced to stop quickly and could lose control of the bicycle, causing a crash.
2. When passing a cyclist, slow down and make sure the rider is aware of your presence.  Leave plenty of room between the rider and your vehicle.  If there is no room to pass because traffic is approaching, wait until it has gone by, and then pass.

Drivers and cyclists might also do well to heed the timeless advice of Bill and Ted. (Or was that Abraham Lincoln?)
Be excellent to each other.

When Does Revocation for DWI start?

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There was much in the news a few years back about altering the conviction date of a DWI so that the defendants suspension would not affect them.  In fact, an attorney went to jail and a judge left the bench over such a scandal.  The question that remained was whether or not the defendants received any benefit from the movement of their cases and the delay of the entry of their judgments.  Below is a great article on the issue.

The Beginning Date for License Revocations Following Conviction for DWI

June 7th, 2012

By Shea Denning

Several recent stories in the News and Observer (here, here, here, and here) have chronicled the SBI’s investigation into orders entered in certain impaired driving cases by former Wake County District Court Judge Kristin Ruth, who resigned last month. Newspaper reports characterize the orders at issue as purporting to alter the conviction date for impaired driving convictions that originally were entered in district court, were appealed to superior court, and subsequently were remanded to district court for resentencing after the appeals were withdrawn.  (For more about the appeal, remand and resentencing process in DWI cases, see this post.) Ruth, who was not the judge who re-sentenced the named defendants in district court after their cases were remanded, reportedly entered orders after the new sentencing hearing was held and the new judgment imposed stating that the defendants’ convictions occurred at some earlier date. Ruth has stated that James Crouch, a defense attorney, submitted the orders to her and that she signed them without reading them.
Newspaper reports suggest that the benefit that might inure to a defendant from changing the date of his or her conviction or judgment for an impaired driving offense is a shortening of his or her post-conviction license revocation period. DMV, however, reportedly has said that none of the defendants named in the orders had their licenses reinstated early. That these post-conviction orders did not so benefit the defendants involved is not particularly surprising in light of the procedures that govern license suspension after a conviction for DWI.  I thought it might be worthwhile to spend a few minutes exploring how that process works.
Clerks of court are required to send to DMV a record of “[a] conviction of a violation of law regulating the operation of a vehicle,” which, of course, includes records of convictions for DWI. G.S. 20-24(b)(1). When DMV receives notice that a person has been convicted of DWI, it must revoke “forthwith” the person’s license. G.S. 20-17(a)(2). The revocation period for a first-time DWI offender is one year. G.S. 20-19(c1). DMV may only revoke a person’s license, however, upon final conviction of a qualifying offense. See G.S. 20-4.01(4a) (defining conviction as “a final conviction”). For a conviction to be final, not only must the person be adjudged guilty but a judgment also must be entered from which the defendant may exercise his or her right to appeal. Moreover, DWI convictions in district court from which a defendant has given notice of appeal to superior court, are not final for purposes of imposing a license revocation, just as they are not final for purposes of sentencing. Thus, while a defendant’s conviction in district court for DWI is the triggering event for a license revocation based upon that conviction, it is not always the date on which the post-conviction revocation period begins.
A defendant may render the post-conviction revocation period immediately applicable by surrendering at sentencing his or her driver’s license to the clerk of court. See G.S. 20-24(a). When this occurs, the clerk provides the defendant with form DL-53, which serves as the defendant’s receipt for the surrender of his or her license and calls for the defendant’s signature acknowledging that his or her license is suspended as of that date. The clerk then either destroys the license or forwards it to DMV. The DL-53 is transmitted to DMV and the date of receipt noted on that form is recorded as the beginning date for the post-conviction revocation in the person’s driving record.
When, however, a defendant does not surrender his or her license at sentencing, the post-conviction revocation is not immediately effective. Instead, DMV imposes the revocation after it is notified by the clerk of the conviction. After receiving notice, DMV sends the driver a letter notifying him or her that the revocation becomes effective on 12:01 a.m. on the eleventh day after the notification. This ten-day notice period is not explicitly required by statute, but corresponds to the ten-day period for filing a notice of appeal to superior court for trial de novo, thus ensuring that DMV does not impose a collateral licensure consequence for a district court conviction that is not yet final.
Thus, it is the clerk’s provision of notice to DMV or the defendant’s surrender of his or her license to the clerk at sentencing—rather than the date of conviction or sentencing—that marks the inception of the revocation period resulting from a conviction for DWI.
There is an exception to the mandatory revocation rule for circumstances in which DMV does not receive a record of a defendant’s conviction until more than a year after it is entered. G.S. 20-24(b1). In such a case, DMV may, but is not required to, substitute a period of probation for all or part of the revocation required. I’m doubtful that DMV would view this provision as applicable to a circumstance, such as the one described above, in which it received notice of a conviction, imposed a revocation, and later received amended notice stating that the conviction occurred at some earlier date.
Like the reporters who have covered this story, my guess is that the benefit sought in the cases under investigation related to license revocation.  Given the way that post-conviction revocations are imposed, however, I can’t quite figure out how the orders were designed to afford that relief.

Wake County Limited Driving Privilege for out of state DWI

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If you are licensed in North Carolina and convicted of a DWI in another state, you may be able to obtain a limited driving privilege in North Carolina even though your license was revoked for the out of state DWI.  The below article was written by Shea Denning of the North Carolina School of Government.

I’ve written several posts (the latest one here) about the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving in violation of G.S. 20-138.1. A limited driving privilege is a judgment issued in the discretion of the court authorizing a person with a revoked driver’s license to drive, for limited purposes and at limited times, during the period of the revocation. As none of the earlier posts discussed the circumstances in which a person who is convicted of impaired driving in another state or in federal court may obtain a limited driving privilege from a North Carolina court, this one will.
G.S. 20-179.3(b) provides that a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction that is substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if he or she would have been eligible for it had the conviction occurred in North Carolina. You can read more here about the eligibility requirements for North Carolina DWI convictions. In general, they require that the person (1) have been punished at Level Three, Four, or Five, (2) have been validly licensed at the time of the offense, (3) not have a qualifying prior impaired driving conviction, (4) not have a subsequent conviction or unresolved charge for impaired driving, and (5) have a substance abuse assessment and furnish proof of financial responsibility. Even if a person’s out of state conviction satisfies the “substantially similar” criteria and the person meets the enumerated eligibility requirements, the person still must demonstrate that his or her North Carolina driver’s license was revoked, a requirement that significantly reduces the universe of eligible persons.
A few examples might help demonstrate the impact of this limitation.
Howard Henderson:  An NC resident with an out-of-state DWI conviction
Suppose that Howard Henderson, a North Carolina resident with a North Carolina driver’s license, drives while impaired while vacationing in Pennsylvania. Henderson subsequently is convicted in Pennsylvania of driving while impaired. Pennsylvania, one of the 46 states that is a member of the Drivers License Compact, reports the conviction to the North Carolina Division of Motor Vehicles (NC DMV). See 75 Pa. Cons. Stat. Ann. § 1581 (West) (requiring the “licensing authority of a party state [to] report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee”); cf. G.S. 20-4.24(a) (requiring that member states report a conviction for “[d]riving a motor vehicle while impaired”).
After receiving the report, NC DMV revokes Henderson’s driver’s license pursuant to G.S. 20-4.24(b), which requires that North Carolina give the same effect to a report of a conviction in a member state of driving a motor vehicle while impaired that it would give to a North Carolina conviction of impaired driving, and G.S. 20-17(a)(2), which requires NC DMV to revoke the license of any driver upon receiving a record for his conviction of impaired driving under G.S. 20-138.1. Cf. Hoenisch v. Com., Dept. of Transp., Bureau of Driver Licensing, 785 A.2d 969, 973 (Pa. 2001) (concluding that a conviction under G.S. 20-138.1 provides a sufficient basis for a reciprocal driver’s license suspension in Pennsylvania).
Given that Henderson’s North Carolina driver’s license was revoked, he is eligible for a limited driving privilege under G.S. 20-179.3 if meets the other eligibility requirements noted above. Henderson must file his application for a privilege with the clerk in duplicate, and a hearing on his application may be held a reasonable time after the clerk files a copy of the application with the district attorney’s office. G.S. 20-179.3(d).
The North Carolina Administrative Office of the Courts (AOC) has created a form petition for seeking such a limited privilege, AOC-CV-350, as well as a form privilege, AOC-CV-352. Because there is no existing North Carolina criminal case for such petitions to accompany, the AOC has directed clerks to establish these sorts of limited driving petitions as civil cases and to collect the appropriate civil filing fees. (I am hoping that our fearless blog leader, Professor Welty, has stopped reading by now. Otherwise he may kick this entire piece off the criminal law blog.)
Since Henderson was convicted of impaired driving in a jurisdiction other than North Carolina, the hearing must be scheduled before the chief district court judge of the district court district in which Henderson resides. G.S. 20-179.3(d). If the Pennsylvania court imposed a term of nonoperation of a motor vehicle, then Henderson may apply for the limited driving privilege only after having completed at least sixty days of that term. G.S. 20-179.3(c).
Howard Henderson 2.0:  An NC resident with an out-of-state DWI conviction in his former home state
Suppose, however, that Henderson was a Pennsylvania resident licensed in Pennsylvania at the time he drove while impaired. Assume further that Henderson’s alcohol concentration at the time he drove while impaired was 0.10, which resulted in a one-year revocation of his Pennsylvania driver’s license. See 75 Pa. Cons. Stat. Ann. § 3804(e) (West). Pennsylvania will not report Henderson’s conviction to any other state, since Henderson is a Pennsylvania resident with a Pennsylvania driver’s license. Suppose Henderson moves to North Carolina two months after his Pennsylvania conviction for impaired driving. Henderson is ineligible to obtain a North Carolina driver’s license because of the Pennsylvania revocation. See G.S. 20-4.25 (prohibiting member state from issuing a license if the applicant has held a license in another member state that has been revoked and the revocation period has not ended). And Henderson will not be eligible for a limited driving privilege under G.S. 20-179.3 because, even though he has no North Carolina driver’s license and no reciprocal privilege to drive in North Carolina, his North Carolina driving privileges have not been revoked. Cf. 20-22 (permitting NC DMV to revoke the driving privileges of nonresidents “in like manner and for like cause as a driver’s license” issued by NC DMV); G.S. 20-23.1 (permitting NC DMV to revoke the operating privileges of a person who does not have a driver’s license “in like manner as it could suspend or revoke his license if such person held a driver’s license”).
Charlene Connor:  An NC resident with a federal DWI conviction
Consider next the circumstances of Charlene Connor, a North Carolina resident with a North Carolina driver’s license who is convicted in federal court of driving while impaired on the military base at Fort Bragg. See 18 U.S.C. § 13 (assimilating state law crimes for areas within federal jurisdiction). Upon receiving notice of Connor’s conviction, NC DMV is authorized to revoke Connor’s license. See G.S. 20-23.2. As a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction, Connor is eligible, upon satisfying other requirements, to obtain a limited driving privilege under G.S. 20-179.3. Her application, like Henderson’s in the first example above, must be filed with the chief district court judge in the district in which she resides.
Charlene Connor:  An out-of-state resident with a federal DWI conviction
Next suppose that Ms. Connor is an active-duty soldier stationed at Fort Bragg, who is licensed to drive by her home state of Texas. In this example, Connor is ineligible to obtain a limited driving privilege under G.S. 20-179.3 following her conviction of impaired driving in federal court because her North Carolina driving privileges have not been revoked. Perhaps Connor could spur NC DMV to act to revoke her driving privileges as a nonresident under G.S. 20-22 and thereby render herself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution.
Practitioners:  Have your say
Practitioners, is the eligibility gap that I have identified above significant in practice? Have you attempted to gain driving privileges for Henderson and Connor 2.0 in the examples above?  If so, please use the comment feature to share your on-the-ground perspective.

New DWI sentencing law

www.kisslinglaw.com

The legislature has amended the DWI sentencing law which now states you will spend you time in a local jail if you are sentenced to serve active time for a DWI regardless of the length of your sentence.

Below is a great review of the new law by the NC SOG.

The General Assembly just made it a whole lot easier to determine whether a defendant imprisoned for a misdemeanor DWI conviction will serve his or her sentence in jail or prison.  Defendants sentenced to imprisonment for misdemeanor impaired driving on or after January 1, 2015 will spend that time in a local confinement facility—a jail—rather than in prison, regardless of the length of the sentence.
Good riddance? We are policy-neutral here at the School of Government, but I’ll own my aversion to laws that I can’t explain.  And, honestly, I cringe every time I have to explain the current rule.  The starting point is G.S. 20-176(c1) (repealed by S.L. 2014-100 (S 744)), which provides:
Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20-28(a) and (b), G.S. 20-141(j), G.S. 20-141.3(b) and (c), G.S. 20-141.4, or a second or subsequent conviction of G.S. 20-138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A-217(5), for a violation of this Chapter.
Thus, the rule generally applicable to sentences for all Chapter 20 offenses (including DWI) is that terms of imprisonment for active sentences, regardless of length, are served in local confinement facilities rather than in the custody of the Division of Adult Correction (DAC). This rule does not apply to a defendant who previously has been imprisoned in a local confinement facility for a Chapter 20 offense. The general rule also does not apply to convictions for certain offenses, among them a second or subsequent conviction of driving while impaired in violation of G.S. 20-138.1.
Have your eyes glazed over yet? Unfortunately, there’s more.
When an exception to the general rule of local confinement in G.S. 20-176(c1) applies, G.S. 15A-1352, which governs the appropriate place of confinement for criminal offenses generally, establishes the framework for where a term of imprisonment may or must be served. Applying that framework to impaired driving sentences became less straightforward after the legislature created a Statewide Misdemeanant Confinement Program for misdemeanor sentences of more than 90 and up to 180 days, but excluded impaired driving sentences from its purview.  The bottom line appears to be that a person sentenced to imprisonment for a second or subsequent DWI has to serve that time in a local jail if the sentence is 90 days or less.  Judges have discretion regarding the place of confinement for sentences of more than 90 and up to 180 days.  And sentences of 181 days or more must be served in a DAC facility.
Yet another set of rules applies to imprisonment served as a condition of special probation. Pursuant to G.S. 15A-1351(a), noncontinuous periods of special probation for DWI as well as other criminal offenses may be served only in local confinement or treatment facilities.  But if the special probation is ordered for a continuous period (say, 30 days), the judge has discretion over whether to order the defendant confined to jail or prison.
The new regime.  New rules apply to misdemeanor impaired driving sentences imposed on or after January 1, 2015.  New G.S. 15A-1352(f) provides that a person sentenced to imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation, must be committed to the Statewide Misdemeanant Confinement Program (SMCP). Under this program—established in 2011 pursuant to G.S. 148-32.1—the North Carolina Sheriffs’ Association identifies space in local confinement facilities that is available for housing misdemeanants.  The program initially did not apply to sentences for misdemeanor impaired driving or to other misdemeanants serving sentences of more than 180 days.  Sec. 16C.1.(a) of S.L. 2014-100 amends G.S. 15A-1352(a) to require that a person sentenced to imprisonment for a misdemeanor or for nonpayment of a fine for conviction of a misdemeanor must be committed to the SMCP if the sentence is for 91 days or more. Sentences of 90 days or less for such misdemeanor convictions (other than DWI) must be served in a local confinement facility.  The changes applicable to misdemeanor sentences other than DWI apply to persons sentenced to imprisonment on or after October 1, 2014.
The bottom line for active terms of imprisonment for misdemeanor DWI under the new rule is that, no matter their length, they will be served through the SMCP.  That means that defendants will be housed in a local jail, thought it may not be the jail in the county of conviction.
What about special probation?  Under a sentence of special probation, a court may suspend the term of imprisonment and place the defendant on probation, requiring that the defendant submit to a period of imprisonment.  For misdemeanor impaired driving sentences imposed on or after January 1, 2015, all imprisonment imposed as a condition of special probation must be served in a designated local confinement or treatment facility—regardless of whether the imprisonment is for continuous or non-continuous periods.  The same rule applies to special probation for misdemeanors generally for sentences imposed on or after October 1, 2014.
Thus, all special probation (or split sentences) for misdemeanors–DWI and otherwise—will be served in a local confinement facility rather than a DAC facility under amended G.S. 15A-1351(a).
While the jury is out on whether changes to the place of confinement rules will save money, allow for a more efficient allocation of resources, or provide DWI inmates with the treatment and services they need, the amendments undoubtedly make the law easier to explain.