#North Carolina Drivng while License revoked

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Right-of-way

In North Carolina, there is no such thing as a right-of-way.  The statutes are written to say who must yield, not who has the right to go.  Below is a great article written by Shea Denning of the NC SOJ on the subject.

Two vehicles, one traveling east and the other traveling south, arrive at approximately the same time at an intersection that is not marked by traffic signs or lights. Which vehicle may enter the intersection first?

The driver of the vehicle on the left must yield the right of way to the vehicle on the right. G.S. 20-155(a). Thus, at the intersection depicted in the image below, the purple vehicle must yield the right of way to the blue vehicle.

Two vehicles approach or enter an intersection at approximately the same time, within the meaning of G.S. 20-155(a), when considering their distances from the intersection, their speeds and other circumstances, the driver of the vehicle on the left should reasonably apprehend danger of collision unless he waits until the vehicle on the right has passed. Dawson v. Jennette, 278 N.C. 438, 445 (1971). The right of way is not determined by a fraction of a second. Id.

What if the intersection is marked by a four-way stop, as depicted this next image?

If both vehicles arrive at the intersection at the same time, the rule noted earlier still applies. The purple vehicle on the left must yield the right of way to the blue vehicle on the right.

What if, at an intersection without traffic lights, two vehicles approach at approximately the same time from opposite directions? The rule in G.S. 20-155(a) does not apply to vehicles proceeding in opposite directions that meet at an intersection. Fleming v. Drye, 253 N.C. 545, 549 (1960). Either vehicle may proceed straight ahead or turn right. But what if, as in the image depicted below, the driver of the purple vehicle has signaled her intention to turn left? Who has the right of way?

In this circumstance, the driver of the purple vehicle must yield the right of way to the driver of the red car so long as that car is proceeding straight through the intersection or making a right turn. G.S. 20-155(b).

Now assume that the intersection requires a four-way stop. The purple car intending to turn left arrives at the intersection before the red car. Whether the purple car is required to yield the right of way depends upon whether it has already entered the intersection before the red car arrives at the stop sign. If it has, then the purple car has the right of way. That’s because the approaching vehicle must be within the intersection or so close as to constitute an immediate hazard for the rule in G.S. 20-155(b) requiring the driver of a vehicle intending to turn left to yield to apply.

Next consider what happens when a vehicle approaches a traffic circle. A vehicle to the driver’s left is already in the traffic circle. Which vehicle must yield? The vehicle approaching the traffic circle must yield to the vehicle within the traffic circle. G.S. 20-155(d). As the DMV describes in its North Carolina Driver’s Handbook, “an entire traffic circle is an intersection.”

Thus, at the traffic circle depicted in the image below, the blue vehicle must yield the right of way to the red vehicle that is already in the traffic circle.

A driver’s failure to yield the right of way is an infraction punishable by a fine of not more than $100.  G.S. 20-176(a), (b).

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Speedy Trial and Other DWI Issues

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11/09/17

There were several new Court of appeals rulings handed down on DWI issues.  Read below the blog post by Shea Denning from the School of Government.

Habitual DWI. G.S. 20-138.5 makes it a felony for a person who has been convicted of three or more offenses involving impaired driving within ten years of the date of the latest offense to drive while impaired. Unlike the statute defining habitual felon status, which requires that each qualifying predicate felony be committed after the person has been convicted of the earlier felony, G.S. 20-138.5 does not require that the prior felonies occur in any particular sequence.

State v. Mayo. Glenn Mayo, Jr. was indicted for habitual impaired driving in December 2015, following his arrest a month earlier for impaired driving. The State alleged that Mayo had three prior convictions for offenses involving impaired driving that occurred within ten years of the November 2015 DWI:  a DWI conviction on September 30, 2015 in Johnston County Superior Court, and two DWI convictions on December 20, 2012 in Wake County District Court. Mayo argued on appeal that the habitual DWI indictment was invalid because two of the underlying convictions were on the same court date. He alleged that G.S. 20-138.5 was ambiguous because it did not address how to treat multiple convictions from the same date and that it should thus be construed in a similar manner to the habitual felon statute. The court of appeals rejected Mayo’s argument. Noting that G.S. 20-138.5 was silent about the timing of the three prior impaired driving convictions other than to require that they occur within the ten years before the latest offense, the court “decline[d] ‘to insert words not used’” by the legislature.  (Slip op. at 8.) The court further noted that it previously had ruled that the determination of what qualifies as a predicate conviction was carried out differently under the habitual impaired driving statute and the habitual felon law.  As a result, the court held that the defendant failed to show error in his habitual impaired driving indictment.

Corpus delicti. This Latin phrase comes up a lot in impaired driving accidents where the defendant confesses to driving, but no other witness saw him doing so. The traditional formulation of the corpus delicti rule requires that there be corroborative evidence, independent of the defendant’s out-of-court confession, to show that the crime occurred. The North Carolina Supreme Court has modified that rule for non-capital cases, permitting the State to rely on a defendant’s confession to obtain a conviction so long as there is strong corroboration of the essential facts and circumstances embraced in the defendant’s confession.

State v. Sawyers. Jason Sawyers was charged with impaired driving and other offenses after the Dodge Charger in which he and his girlfriend were traveling ran off the road, hit a tree, and landed in a ditch.  The first officer arrived about five minutes after the crash and found Sawyers seated in the driver’s seat and his girlfriend in the passenger seat. Sawyers, whose license was revoked, later admitted to another officer that he had been driving at the time of the accident. At the conclusion of the State’s evidence, Sawyers moved to dismiss the impaired driving charge on the basis that the State had to prove that the vehicle was actually “‘moving and running’” and the evidence merely established that he was “‘sitting in the passenger seat of a wrecked car.’” (Slip op. at 4.) The trial court denied the motion at that juncture and again when Sawyers renewed it at the close of all the evidence. Sawyers was found guilty and appealed, arguing, among other things, that the State failed to present sufficient corroborative evidence, independent of his admission that he had been driving, to prove that he was the driver. The court of appeals rejected Sawyer’s argument, which it characterized as founded upon “a common misunderstanding of the corpus delicti rule.” (Slip op. at 8.) The court explained that the rule was designed to guard against the possibility that a defendant will be convicted of a crime that never occurred—not to prevent the wrong defendant from being convicted of a crime that did occur. For that reason, a confession identifying the perpetrator of the crime is not subject to the corpus delicti rule.

The Sawyers court explained that State presented substantial evidence at trial to establish that immediately before the crash, the Dodge Charger was speeding down a curvy road. The first officer to arrive at the scene noted that both Sawyers and his girlfriend smelled of alcohol. This evidence satisfied the requirement that the State present evidence tending to show that the crime of impaired driving occurred. It was thus permissible for the State to rely upon the defendant’s confession to prove that he was the driver. Moreover, the court noted that witnesses saw the defendant get out of the driver’s side of the vehicle seconds after the crash and the girlfriend’s purse was found on the passenger floorboard, facts that tended to support the trustworthiness of the defendant’s admission.

Speedy trial. DWI cases often take longer than other misdemeanor charges to try. Delays may result from circumstances including (1) the time necessary to obtain the results of a chemical analysis of the defendant’s blood from a crime laboratory and to secure the attendance of the chemical analyst at trial; (2) litigation of motions to suppress and dismiss, which may be appealed from district court to superior court and are then remanded for entry of final orders in district court; and (3) the dismissal and re-filing of charges. Several appellate opinions address the merits of speedy trial claims filed by defendants based on such delays. A court considering a defendant’s motion to dismiss for violation of the right to a speedy trial must assess and balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay.

State v. Armistead. James Armistead was charged with impaired driving in Pitt County on September 3, 2011. On May 1, 2012, two days before his DWI trial was scheduled to begin, Armistead was sentenced in Beaufort County to imprisonment for a term of 108 to 139 months. Neither Armistead’s appointed counsel on the DWI charges nor the Pitt County prosecutor knew about the Beaufort County case. Because he was imprisoned, Armistead did not appear in court on May 3. The following September the prosecutor dismissed the DWI charge with leave to later reinstitute the proceedings.

Meanwhile, from prison, the defendant mailed letters in October and November 2012 requesting that charges pending against him in several counties be dismissed. Though some his correspondence related to the Pitt County DWI charge, there was no evidence that the clerk of court or district attorney in Pitt County received these letters. In November 2015, Armistead wrote again to the Pitt County Clerk of Court. The clerk received this letter and notified Armistead’s attorney, who notified the district attorney.  The prosecutor put the DWI case back on the calendar and it was tried in district court on January 28, 2016. The judge found Armistead guilty. Armistead appealed to superior court where he moved to dismiss the charges on the basis that the four-year delay between his arrest and trial violated his right to a speedy trial. The superior court denied the motion. The case proceeded to trial before a jury, and Armistead was again convicted. He again appealed on the basis that he had been denied a speedy trial.

The court of appeals explained that the delay of four years was sufficiently long to trigger its examination of the remaining factors. As for the second factor, the court determined that the State could have avoided the delay in Armistead’s trial by simply searching the DPS database or another database routinely used by prosecutors. Because the State was negligent in its efforts to locate Armistead, the court weighed this factor in Armistead’s favor. The third factor—the defendant’s assertion of his right—was neutral in the court’s view since there was no evidence that Armistead’s correspondence reached the proper court officials or the prosecutor until three years after the first trial date. The court weighed the final factor, prejudice, in the State’s favor as Armistead failed to show that the pending charges affected his classification in prison or deprived him of a defense at trial. After balancing the four factors, the court determined that Armistead’s speedy trial rights had not been violated.

Admission of breath test results. When law enforcement officers obtain breath alcohol concentration results by following the procedures prescribed by statute and administrative regulation, the test results are admissible without the evidentiary foundation that would otherwise be required for such scientific evidence. To benefit from this lowered bar for admissibility, the State must show that the required procedures were followed. One of the requirements is that the test be administered by a person with a current permit issued by the Department of Health and Human Services authorizing the person to perform a breath test on the instrument that was used. G.S. 20-139.1(b)(2). Amendments to the DWI laws enacted in 2006 require courts to take judicial notice of the list of permits issued to the person who conducted the test, the type of instrument on which the person is authorized to perform tests, and the date the permit was issued. Id.

State v. Squirewell. Anthony Squirewell II was charged with habitual impaired driving. At trial, the state trooper who administered Squirewell’s breath test testified that he was certified to conduct breath tests on the instrument used to test Squirewell. He did not specifically state that he was certified at the time Squirewell’s test was performed. Squirewell argued at trial and on appeal that this testimony was insufficient to provide an adequate foundation for introduction of the breath test results. The trial court and the court of appeals rejected Squirewell’s argument.

Perhaps because the trial court did not take judicial notice of the trooper’s permit, the court of appeals did not rely upon the statutory judicial notice requirement. Instead, it cited older cases that list three ways in which the State can prove the test administrator had a permit: (1) by stipulation; (2) by offering the permit; or (3) by presenting other evidence.  The court then considered whether the trooper’s testimony in Squirewell’s case was adequate to show that he had a permit.  Although the trooper did not explicitly state that he had a DHHS permit on the day he conducted defendant’s breath test, the court held that his testimony that he was certified and that he carried out the test according to the Department’s procedures was adequate to lay the necessary foundation for the admission of chemical analysis results.

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Should Judges Get Special License Plates?

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11/3/17

Two days ago I was in the office of an assistant district attorney who was a former magistrate judge.  I saw a license plate similar to the one above on his wall and had no idea what it was for.  I though it had something to do with Michael Jordan.  My question to him was why do judges have special license plates.  Off the cuff, he said, “so we do not get pulled over by police.”  This did not shock me.  I cannot think of any other legitimate reason for judges to have special license plates.  I did a little research and came across the article below from NY where they looked into whether or not it was ethical.  Of course the state bar came to the wrong conclusion.  See below.

A state commission looking at whether judicial license plates help judges dodge parking and traffic tickets declared Wednesday there was no problem.

But one of the panel’s own members slammed the report as “an exercise in evasion.”

“The failure of our report to confront the issue head on ... betrays a pragmatic queasiness with the possibility of withdrawing an established, longstanding perk for the judiciary," wrote veteran attorney Richard Emery, a member of the Commission on Judicial Conduct. "Public confidence will further erode if we exempt our judges from equal application of the law — no matter how minor."

The commission started probing the issue in August after an upstate judge — who served in the Office of Court Administration advising judges on ethics — helped fix a ticket for herself and for the wife of another judge.

At the time, the commission declared the possible abuse of judicial license plates to dodge parking and traffic tickets was potentially pervasive.

The commission also noted it had "repeatedly" looked at cases where judicial plates inspired cops to deep-six parking and traffic violations for judges.

But Wednesday's 14-page report said such plates were not a problem.

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State records show 2,265 state, local and federal judges use the specially marked plates on their private vehicles.

The 10-member commission issued a finding that declared judicial plates "do not create an appearance of impropriety."

Four commission members are judges, two of whom have judicial plates.

The toughest recommendation in the report was to order the Office of Court Administration to put the issue on the agenda of training programs for judges.

Even the report itself made clear the commission keeps running into this issue: "Over the years in the course of investigating other complaints of ticket-fixing, the Commission has been advised by law enforcement officers in various parts of the state that at times they have declined to issue tickets to motorists whom they stopped for speeding, once they realized by virtue of license plates that the drivers were judges."

Emery blasted the findings, citing numerous cases of judges fixing or trying to fix tickets, and even of one judge being driven home by cops to avoid a drunk-driving charges instead of being arrested.

"Though judges are unequivocally prohibited from using their judicial status to obtain special treatment for themselves, their families or friends, they are legislatively authorized to flaunt their judicial status on their personal vehicles wherever they go," he wrote. "This schizophrenic message inevitably leads to bizarre scenarios involving special treatment being afforded and accepted by judges."

Thanks to the NY Daily News for the article

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Will Defects on Face of Ticket get you a Dismissal

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In a lot of states, you can get a traffic ticket dismissed is there are any mistakes on the face of the ticket.  No so in North Carolina.  Here is a great article from the NC School of Government on the issue.

Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).

Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well.

The new case is State v. Jones.

Facts. The case began when a Raleigh officer stopped a vehicle for speeding. The driver wasn’t impaired, but did have an open can of cold beer in the car. The officer issued a citation that read in part as follows:

The officer named below has probable cause to believe that on or about Sunday, the 04 day of January, 2015 at 10:16PM in [Wake] [C]ounty . . . [Defendant] did unlawfully and willfully OPERATE A MOTOR VEHICLE ON A STREET OR HIGHWAY AT A SPEED OF 62 MPH IN A 45 MPH ZONE. (G.S. 20-141(J1)

and on or about Sunday, the 04 day of January, 2015 at 10:16PM in [Wake] [C]ounty . . . [Defendant] did unlawfully and willfully WITH AN OPEN CONTAINER OF ALCOHOLIC BEVERAGE AFTER DRINKING. (G.S. 20-138.7(A))[.]

Procedural history. The defendant was convicted on both counts in district court and appealed for trial de novo in superior court. A jury acquitted him of speeding but convicted him of the open container violation. He appealed again to the appellate division, arguing that the charging language for the open container charge was defective. He contended that the language omits (1) any allegation that he drove or operated a motor vehicle on a public street or highway, and (2) any allegation that the open container was in the passenger area of his vehicle.

Majority opinion. Judge Berger, joined by Judge Dillon, concluded that the citation was sufficient. The majority reasoned that a citation must only “[i]dentify the crime charged,” G.S. 15A-302(c); that the official commentary to article 49 of chapter 15A of the General Statutes states that this is “less than is required” for other forms of criminal process, because a citation “will be prepared by an officer on the scene”; and that a defendant who wants a more technical statement of the offense has a right to object to trial on a citation and thereby to require the State to file a statement of charges or to obtain a summons or an arrest warrant, G.S. 15A-922(c).

Applying these principles to the citation at issue, the majority stated:

The citation properly identified the crime of having an open container of alcohol in the car while alcohol remained in [the defendant’s] system . . . by citing [G.S.] 20-138.7(a) and stating Defendant had an open container of alcohol after drinking. Identifying a crime charged does not require a hyper-technical assertion of each element of an offense.

Dissent. Judge Zachary dissented. In her view, (1) a citation is a criminal pleading, G.S. 15A-921; (2) a pleading must “asserts facts supporting every element of a criminal offense,” G.S. 15A-924(a)(5); and (3) the citation at issue failed to allege multiple essential elements and so was fatally defective. As to the majority’s conclusion that the citations are held to a lower standard than other charging documents, Judge Zachary contended that the relaxed standard applies to the use of a citation as a criminal process that requires the defendant to come to court, but not to the use of a citation as a criminal pleading that formally charges the defendant with an offense.

Analysis. Both the majority opinion and the dissent in Jones are thoughtful and detailed. Given the dissent, I would be surprised if the defendant did not exercise his right to have the state supreme court review the matter.

If there is no further appeal, or if Jones is affirmed, two principal questions will arise:

Just how low is the bar for citations? When does charging language fail to “identify” the offense charged? The majority in Jones seemed to rely in part on the fact that the correct statutory citation accompanied the charging language. Will the inclusion of a correct statutory citation cure any and all defects with a citation? Could a statutory citation be sufficient by itself to identify an offense, even without any charging text?

Is there any impact on other district court pleadings? Most of the reasoning in Jones is specific to citations. Only citations are prepared by an officer in the field and a defendant’s right to object to being tried on a citation does not extend to other types of pleadings. But the last several pages of the majority opinion explores what seems to be an alternative holding that even if the citation were defective, “the [citation’s] failure to comply with [G.S.] 15A-924(a)(5) by neglecting to allege facts supporting every element of an offense in a citation is not a jurisdictional defect” that may be raised at any time.  The majority’s argument seems to be that while a proper indictment is required for the superior court to have jurisdiction over a felony, district court matters do not have the same jurisdictional prerequisite. Candidly, I am not sure that I fully grasp this section of the opinion, but the court appears to be drawing a distinction between misdemeanors and felonies, not between citations and other pleadings. Therefore, its reasoning may apply to other district court pleadings, and may impact the remedy available when pleading defects are identified.

I didn’t quickly find numerous cases from other states addressing similar issues, but I did find one. In State v. Leach, 782 P.2d 552 (Wash. 1989) (en banc), the Supreme Court of Washington held that while most criminal charging documents must allege every element of a charged offense, citations need not do so as long as they describe the offense generally and provide a citation to the pertinent statute. As did the majority in Jones, the court emphasized that citations are normally prepared at the scene by law enforcement officers.

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Riding with Feet on Dashboard

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I just came across this article.  While it is not illegal, it is not a good idea.

A Tennessee fire department took to Facebook on August 3 to share an extremely crucial car safety tip that often gets overlooked.

The Chattanooga Fire Department shared the alarming message, which was originally posted by road safety activist Shane O'Connor on Twitter, to warn residents about the dangers of riding in a car with their feet on the dashboard.

"While traveling this weekend, I noticed many passengers had their feet on the dashboard of their car," the post read. "Airbags deploy between 100 & 220 MPH. If you ride with your feet on the dash and you're involved in an accident, the airbag may send your knees through your eye sockets."

While that may sound like a far-fetched scenario, one Georgia woman can confirm that this nightmare can, indeed, happen to anyone.

Audra Tatum says that she used to ride in cars with her feet on the dashboard all the time.

"My husband would tell me, 'If we have a wreck it's going to break your leg.' I dismissed him," she told WTVC.

But on August 2, 2015, all that changed when Tatum and her husband T-boned another vehicle on their way to pick up their two son's from her parents' house.

At the time of the crash, Tatum wasn't wearing a seat belt and was also resting her foot up against the dashboard.

The force of the airbags exploding threw her foot up into her face, shattering her nose, ankle, femur and shoulder.

Sadly, doctors told Tatum that if she had both of her feet on the floor at the time of the crash, she likely wouldn't have sustained any injuries at all.

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CIVIL PENALTIES FOR PASSING STOPPED SCHOOL BUS IN NC

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New Civil penalties for passing stopped school bus in NC.  Thanks to NC SOG and Shea Denning for the information.

Four years ago, the General Assembly increased the criminal fine for passing a stopped school bus and enacted new license revocation and registration hold provisions. During the previous year—2012—there had been more than 1,300 misdemeanor charges for passing a stopped school bus and three felony charges, two for unlawfully passing a stopped school bus and striking a person and one for doing so and causing death. Not much has changed. In 2016, there were 1,400 misdemeanor charges for passing a stopped school bus and three felony charges for doing so and striking a person. This year, the General Assembly took a different tack. S.L. 2017-188 (S 55) authorizes counties to adopt ordinances that enforce the provisions of G.S. 20-217 by means of automated school bus safety cameras and impose civil penalties for violations.

The rule. G.S. 20-217(a) requires the driver of a vehicle that approaches a school bus from any direction on the same street, highway, or public vehicular area to stop and remain stopped when (1) the bus is displaying its mechanical stop signal or flashing red lights and (2) is stopped for the purpose of allowing passengers to board or leave the bus. The driver of the other vehicle may not move, pass, or attempt to pass the school bus until after (1) the mechanical stop signal has been withdrawn, (2) the flashing red stoplights have been turned off, and (3) the bus has started to move. (The exception for vehicles traveling in the opposite direction on a divided roadway is discussed here.)

Criminal penalties. Passing a stopped school bus in violation of G.S. 20-217(a) is a Class 1 misdemeanor. A driver who willfully violates G.S. 20-217(a) and strikes a person is guilty of a Class I felony. A driver who willfully violates G.S. 20-217(a), strikes a person, and thereby causes the person’s death, is guilty of a Class H felony.

Civil enforcement. New G.S. 153A-246 permits counties to adopt ordinances for the civil enforcement of G.S. 20-217 by means of an automated school bus safety camera installed and operated on the school bus. (Absent express authorization, this type of regulation would be preempted.) Such an ordinance applies only to misdemeanor violations of G.S. 20-217—not to violations that result in injury or death.

Issuance of citation. New G.S. 153A-246(b) sets forth the procedures for civil enforcement. The county must issue a citation notifying the registered owner of the motor vehicle of the violation. The owner must receive the citation within 60 days of the violation. The citation must include an image taken from the automated school bus camera that shows the vehicle involved in the violation. It must also include an affirmation from a law enforcement officer that his or her inspection of the image reveals that the owner’s motor vehicle violated the ordinance.

Hearing. A person who wishes to contest a citation must, within 30 days of receiving the citation, request a hearing in writing. The person must also submit an affidavit stating the basis for contesting the citation. If the registered owner avers that the vehicle was, at the time of the violation, in the care, custody or control of another person or company, that person or company may then be issued a citation.

The county must institute a nonjudicial administrative hearing process for contested citations or penalties. A person may appeal an adverse administrative decision to district court.

Civil penalty. Violations of such an ordinance are noncriminal violations for which no insurance or driver’s license points may be assessed. The civil penalty for the first offense is $400. The penalty for the second offense is $750. Each subsequent ordinance violation is subject to a $1,000 penalty. A person who fails to pay the civil penalty or request a hearing within 30 days after receiving the citation waives the right to contest responsibility and is subject to a late penalty of $100 in addition to the assessed civil penalty.

Registration hold. Effective July 25, 2018, DMV must refuse to register any motor vehicle owned by a person who has failed to pay a civil penalty assessed under a local ordinance adopted pursuant to G.S. 153A-246. This provision applies to the registration of any motor vehicle whose owner’s failure to pay is reported by a county to DMV on or after July 25, 2017.

No civil enforcement in the case of criminal prosecution. If a person is charged in a criminal pleading with violating G.S. 20-217, the charging law enforcement officer must so notify the county office responsible for processing civil citations. The county may not impose a civil penalty against the person arising out of the same facts as those for which the person is charged in a criminal pleading. If a civil penalty based on the same conduct was previously imposed and paid, the county must refund the civil penalty with interest.

Criminal prosecution encouraged. G.S. 153A-246(e) states that the General Assembly “encourages criminal prosecution for violation of G.S. 20-217” when school bus camera photographs and video provide sufficient evidence to support such a prosecution. Amendments to G.S. 20-217(h) clarify, however, that “failure to produce a photograph or video recorded by an automated school bus safety camera” does not preclude prosecution.

Images as evidence. New G.S. 115C-242.1(d) requires that any photographs or videos recorded by an automated school bus safety camera that capture a violation of G.S. 20-217 be provided to the investigating law enforcement agency for use as evidence in a criminal prosecution. When such a camera is installed, it must be identified by a warning sign conspicuously posted on the school bus.

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New Regs for Automated Cars

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Great blog from NC SOG on new legislature on automated cars.

Last month, the General Assembly ratified a bill authorizing the operation of fully autonomous vehicles on state roadways. The legislation is effective December 1, 2017.  If you expect your car to begin driving you to work later this fall, however, you’ll be disappointed. In this instance, legislation has outpaced the technology it regulates.

The legislation. North Carolina joined nineteen other states in regulating the operation of the autonomous vehicles when Governor Roy Cooper signed House Bill 469 last week.

S.L. 2017-166 (H 469) enacts new Article 18 in Chapter 20 (G.S. § 20-400 – 403) to regulate the operation of fully autonomous vehicles. A “fully autonomous vehicle” is a motor vehicle that is equipped with an automated driving system that does not require an occupant of the vehicle to perform any portion of the operational or tactical control of the vehicle when the automated driving system is engaged. In fact, to qualify as a fully autonomous vehicle any equipment that permits an occupant to perform part of the driving task must be stowed or made unusable so that an occupant cannot assume control of the vehicle when the automated driving system is engaged.

In engineering lingo, fully autonomous vehicles are classified at SAE Levels 4 and 5. The National Highway Transportation Safety Administration explains these classifications this way:

At SAE Level 4, an automated system can conduct the driving task and monitor the driving environment, and the human need not take back control, but the automated system can operate only in certain environments and under certain conditions; and

At SAE Level 5, the automated system can perform all driving tasks, under all conditions that a human driver could perform them.

Vehicle requirements. New G.S. 20-401(g) permits the operation of fully autonomous vehicles on North Carolina roadways if the vehicle meets all of the following requirements:

(1) the vehicle complies with state and federal law and has been certified as being in compliance with federal motor vehicle safety standards;

(2) if involved in a crash, the vehicle is capable of stopping at the scene, contacting the appropriate law enforcement agency to report the crash, calling for medical assistance, and remaining at the scene until authorized to leave;

(3) the vehicle can achieve a “minimal risk condition” (meaning that if the automatic driving system fails, the vehicle comes to a complete stop);

(4) the vehicle is covered by a motor vehicle liability policy meeting statutory requirements; and

(5) the vehicle is lawfully registered.

No license necessary. New G.S. 20-401(a) states that the operator of a fully autonomous vehicle with the automated driving system engaged is not required to be licensed to drive.

The owner is responsible. New G.S. 20-401(d) provides that the person in whose name a fully autonomous vehicle is registered is responsible for any moving violations involving the vehicle.

Fully autonomous vehicles are no substitute for a babysitter. A person must be at least 12 years old to travel unsupervised in a fully autonomous vehicle. G.S. 20-401(c) makes it unlawful for the parent or legal guardian of a child under 12 to knowingly permit the child to occupy a fully autonomous vehicle that is in motion or that has the engine running unless the child is being supervised by a person who is at least 18 years old.

Preemption. Local governments are prohibited under new G.S. 20-401(f) from enacting laws regulating fully autonomous vehicles or vehicles that are equipped with an automated driving system. Local governments may, however, continue to regulate traffic as authorized in Chapter 153A and Chapter 160A of the General Statutes so long as the regulations apply to motor vehicles generally.

Fully Autonomous Vehicle Committee established. New G.S. 20-403 creates a Fully Autonomous Vehicle Committee within the North Carolina Department of Transportation (DOT) and specifies the categories of persons who shall comprise the 17-member committee. The committee must meet at least four times a year to consider matters related to fully autonomous vehicle technology, review the application of state motor vehicle law to fully autonomous vehicles, make recommendations regarding the testing of fully autonomous vehicles, make recommendations for DOT rules and ordinances, and make recommendations to the General Assembly on necessary changes to state law.

Where can I get one of these vehicles?  Nowhere just yet.

Ford Motor Company says it will produce a fully autonomous vehicle by 2021. But the vehicle it promises is a Level 4 vehicle, which means that it is fully autonomous only in certain areas and under certain conditions. An industry analyst explained here that such a car may only be fully autonomous in a geo-fenced area, such as the area of Pittsburgh where Uber is testing self-driving cars.

It may be another decade before Level 5 automation—think a vehicle with no steering wheel or pedals—is available.  But when it is, North Carolina will be ready.

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Death by Motor Vehicle

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This can even happen to police officers.

20-141.4.  Felony and misdemeanor death by vehicle; felony serious injury by vehicle; aggravated offenses; repeat felony death by vehicle.

(a)        Repealed by Session Laws 1983, c. 435, s. 27.

(a1)      Felony Death by Vehicle. - A person commits the offense of felony death by vehicle if:

(1)        The person unintentionally causes the death of another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.

(a2)      Misdemeanor Death by Vehicle. - A person commits the offense of misdemeanor death by vehicle if:

(1)        The person unintentionally causes the death of another person,

(2)        The person was engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving under G.S. 20-138.1, and

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.

(a3)      Felony Serious Injury by Vehicle. - A person commits the offense of felony serious injury by vehicle if:

(1)        The person unintentionally causes serious injury to another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury.

(a4)      Aggravated Felony Serious Injury by Vehicle. - A person commits the offense of aggravated felony serious injury by vehicle if:

(1)        The person unintentionally causes serious injury to another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2,

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury, and

(4)        The person has a previous conviction involving impaired driving, as defined in G.S. 20-4.01(24a), within seven years of the date of the offense.

(a5)      Aggravated Felony Death by Vehicle. - A person commits the offense of aggravated felony death by vehicle if:

(1)        The person unintentionally causes the death of another person,

(2)        The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2,

(3)        The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death, and

(4)        The person has a previous conviction involving impaired driving, as defined in G.S. 20-4.01(24a), within seven years of the date of the offense.

(a6)      Repeat Felony Death by Vehicle Offender. - A person commits the offense of repeat felony death by vehicle if:

(1)        The person commits an offense under subsection (a1) or subsection (a5) of this section; and

(2)        The person has a previous conviction under:

a.         Subsection (a1) of this section;

b.         Subsection (a5) of this section; or

c.         G.S. 14-17 or G.S. 14-18, and the basis of the conviction was the unintentional death of another person while engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2.

The pleading and proof of previous convictions shall be in accordance with the provisions of G.S. 15A-928.

(b)        Punishments. - Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section:

(1)        Repeat felony death by vehicle is a Class B2 felony.

(1a)      Aggravated felony death by vehicle is a Class D felony. Notwithstanding the provisions of G.S. 15A-1340.17, the court shall sentence the defendant in the aggravated range of the appropriate Prior Record Level.

(2)        Felony death by vehicle is a Class D felony. Notwithstanding the provisions of G.S. 15A-1340.17, intermediate punishment is authorized for a defendant who is a Prior Record Level I offender.

(3)        Aggravated felony serious injury by vehicle is a Class E felony.

(4)        Felony serious injury by vehicle is a Class F felony.

(5)        Misdemeanor death by vehicle is a Class A1 misdemeanor.

(c)        No Double Prosecutions. - No person who has been placed in jeopardy upon a charge of death by vehicle may be prosecuted for the offense of manslaughter arising out of the same death; and no person who has been placed in jeopardy upon a charge of manslaughter may be prosecuted for death by vehicle arising out of the same death.  (1973, c. 1330, s. 9; 1983, c. 435, s. 27; 1993, c. 285, s. 10; c. 539, ss. 371, 1259; 1994, Ex. Sess., c. 24, s. 14(c); 2006-253, s. 14; 2007-493, s. 15; 2009-528, s. 1; 2012-165, s. 2, 3.)

CMPD Officer Strikes Pedestrian.  The Charlotte Observer reports that Officer Phillip Barker of the Charlotte-Mecklenburg Police Department has been charged with misdemeanor death by vehicle after fatally colliding with a pedestrian in his cruiser over the weekend.   The Observer says that Barker was traveling through a green light at 100 mph in a 35 mph zone when he hit James Michael Short as he was crossing the street.  Barker was responding to a motor vehicle crash at the time of the incident and had his siren and lights on. 

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New Deferral Program for Unlicensed, Undocumented Drivers

www.kisslinglaw.com

Great article on this issue.  I do not usually post the comments but I thought this one was thought provoking.  Thanks to Shea Denning for her post.

A few weeks ago, she wrote about a Stanford University study suggesting that granting driver’s licenses to unauthorized immigrants improves overall traffic safety. That approach is not an option in North Carolina, where unauthorized immigrants have been ineligible to obtain a driver’s license, learner’s permit or identification card since 2006. Recognizing that many unauthorized immigrants drive regardless of whether they are licensed, the district attorney in Orange and Chatham Counties announced this week a new policy for disposing of no operator’s license charges against such drivers, provided they meet certain conditions.

The News and Observer reports that the district attorney’s office in Orange and Chatham Counties will dismiss charges of no operator’s license, a Class 3 misdemeanor, if the person charged is ineligible to be licensed for immigration-related reasons and he or she provides an identification card and completes a driving school and civics education course. Orange County Justice United, a nonprofit advocacy group that lobbied for the change, has posted this overview of the deferral program on its website.

The overview document states that the program will not be available to individuals charged with no operator’s license in conjunction with other charges or who are ineligible to be licensed due to prior revocations, moving violations, unpaid tickets, or other offenses. Orange-Chatham District Attorney Jim Woodall told reporters that the program would provide driver’s education to a group of citizens who had not before received that type of instruction and would help to build trust between the law enforcement and immigrant communities.

“Faith-IDs” are listed in the overview as a preferred type of identification for unauthorized immigrants to provide to the district attorney’s office. These identification cards are issued by FaithAction, a Greensboro organization that launched an initiative in 2013 to provide identification cards to North Carolina residents who lacked access to government issued forms of identification. The Greensboro Police Department has publicly supported the FaithAction’s efforts, sending Spanish-speaking officers to identification card events.

In 2016, more than 121,766 people were charged statewide with driving without a license. Slightly more than 2,000 people were charged with this offense in Orange and Chatham Counties last year. Orange County Justice United reports that 77 percent of drivers charged with no operator’s license in Orange and Chatham Counties from 2008 to 2015 were Latino. They did not report how many of these drivers would have been eligible for deferral under the new program.

In addition to avoiding a misdemeanor record, defendants whose charges are dismissed under the deferral program will not be assessed the $190 in court costs that apply to conviction of a misdemeanor Chapter 20 offense or the $50 fine that typically accompanies a no operator’s license conviction.

One comment on “New Deferral Program for Unauthorized Immigrants Charged with NOL”

Jon

April 21, 2017 at 3:02 pm

This is utterly absurd.  How can anyone associated with enforcing the law, as it is written, agree to this?  When people decide to not enforce the law, in certain cases, it leads to abuse and discrimination.  The law should be plainly written and enforced in the same way, regardless of who the charged person is.  That is the only way that ALL people are treated the same under the law. By giving a certain group of people a pass on the law, the law cannot be enforced fairly across the board.  What about an African American or a white person that does not have a license?  Different Standard?

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Effects of Issuing Driver’s Licenses to Undocumented Immigrants

www.kisslinglaw.com

Interesting post regarding this issue.  It seems obvious that those with a license are more likely to stop after an accident if they have a license.  I would question whether the same study would get the same results if just comparing licensed drivers and unlicensed drivers regardless of whether or not they are immigrants or not.

Researchers at Stanford University recently published a study showing that a 2013 California law allowing unauthorized immigrants to obtain driver’s licenses led to a significant reduction in hit and run accidents and did not increase the rate of traffic accidents and fatalities. The study’s authors said this latter finding “suggests there is no empirical support for the claim that unauthorized immigrants are less cautious drivers or generally more likely to cause accidents.” Instead, the findings suggest that “providing driver’s licenses to unauthorized immigrants led to improved traffic safety” and to “significant positive externalities for the communities in which they live.” What significance might this finding have for policymakers in North Carolina?

North Carolina law. North Carolina’s current driver’s license rule for unauthorized immigrants is easy to explain: Unauthorized immigrants are not eligible to obtain a North Carolina driver’s license, learner’s permit, or identification card. That was not the case before 2006. In fact, in the early 2000s, North Carolina had a widespread reputation for being a state in which a person could easily obtain a driver’s license, regardless of whether the person was an authorized immigrant or whether the person even lived in the state. The licensing system was substantially amended following the U.S. Congress’s enactment of the REAL ID Act of 2005. That act was a response to the 9/11 Commission’s recommendation that the federal government set standards for the issuance of identification documents such as driver’s licenses. North Carolina legislation enacted in 2006 requires that an applicant for a North Carolina driver’s license produce a Social Security Card or other documentation issued by the U.S. government proving his or her lawful presence in the United States. That’s precisely the sort of documentation that unauthorized immigrants lack.

California law. According to the Stanford study, California is one of 12 states that, along with the District of Columbia, have adopted laws that allow unauthorized immigrants to obtain driver’s licenses. Section 12801.9 of California Motor Vehicle Code, which became effective on January 1, 2015, provides for the issuance of licenses bearing a special designation for such drivers. The licenses must bear the following notice:  “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.” The statute prohibits anyone from using this type of license to consider the licensee’s citizenship or immigration status as a basis for an investigation, arrest, citation, or detention. More than 600,000 licenses were issued under section 12801.9 in the first year it was effective.

Key findings. The Stanford study estimates that Section 12801.9 led to an average decrease in the rate of hit and run accidents of between 7 and 10 percent, which translates to about 4,000 fewer hit and run accidents in 2015. As previously noted, the study found no change in the rate of accidents. Researchers reported that vehicle registration data following enactment of the law indicated that unauthorized immigrants who obtained special driver’s licenses were less likely to register a car than other newly licensed drivers. This finding suggested to researchers that these drivers were already driving (without a driver’s license) before California’s driver’s license law was amended.

A potential explanation. The study’s authors posit that accidents did not increase under the new law because most new license holders were driving before they were authorized to do so. As a result, most of them had sufficient driving experience; obtaining a driver’s license did not change their routine driving behavior. As for the effect on hit and run accidents, the authors said that the prohibition against using the license to consider an individual’s immigration status reduced the incentive for a driver to flee the scene for fear of being detained and deported. In addition, once they became licensed, such drivers no longer had to worry that the vehicle they were driving would be seized and impounded on the basis that it was driven by a person without a license.

The significance of reducing hit and runs. The study reports that reducing hit and runs is a benefit for public safety given the serious injuries and fatalities that can result from delayed medical reporting.  It also has a positive economic effect by making it more likely that the responsible party will bear the financial burden of the accident.  The study estimated that 4,000 fewer hit and run accidents resulted in $17 milllion being charged to the at-fault driver and his or her insurance company rather than to the hit and run victim. In addition, researchers estimated that the decline in hit and run accidents saved not-at-fault drivers about $3.5 million in out-of-pocket expenses for car repairs.

Relevance for policymakers in NC and elsewhere. The study’s authors note that initiatives like California’s have been debated in other states with significant populations of unauthorized immigrants, but that no one had, until now, studied the impact of such laws on traffic safety. While the estimated 350,000 unauthorized immigrants in North Carolina, representing 3.4 percent of the state’s overall population, are far outnumbered by the 2.6 million such persons in California, many of the same concerns regarding unlicensed driving by this population are present here. North Carolina legislators’ proposals for eliminating unauthorized driving by unauthorized immigrants have to date focused on deterrence rather than a special licensing approach. Last session, House Bill 338 proposed increasing the punishment for driving without a license for people who (like unauthorized immigrants) are not eligible to be licensed. This session’s House Bill 471 likewise proposes increasing the punishment for repeat offenders of the driver’s license law and provides for forfeiture of the vehicle driven by a person in the commission of a third or subsequent no operator’s license offense. Whatever approach policymakers adopt, empirical evidence about the impact of the California approach can help inform the policy debate.

Thank you to Shea Denning for this post.

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Does Race Affect Which Pedestrians We Stop For In Crosswalk?

www.kisslinglaw.com

Great study on this issue.  Shouldn’t we stop for everyone?

Examining racial bias as a potential factor in pedestrian crashes

Courtney Coughenoura, , , ,

Sheila Clarka, ,

Ashok Singhb, ,

Eudora Clawa, ,

James Abelara, ,

Joshua Huebnera,

a University of Nevada, Las Vegas School of Community Health Sciences, 4505 S. Maryland Pkway, Box 3064, Las Vegas, NV 89154, United States

b University of Nevada, Las Vegas William F. Harrah College of Hotel Administration, 4505 S. Maryland Pkway, Box 6021, Las Vegas, NV 89154, United States

Received 4 March 2016, Revised 26 August 2016, Accepted 29 September 2016, Available online 4 October 2016

Show less

http://dx.doi.org/10.1016/j.aap.2016.09.031

Get rights and content

Highlights

•

Bias in yielding may influence rates of pedestrian crashes for people of color.

•

Drivers yielded less to the white pedestrian while she waited at the curb.

•

Drivers yielded less to the black pedestrian while she was in the roadway.

•

Failing to yield while in the road has greater safety implications for people of color.

•

Policies and environmental modifications to enhance pedestrian safety are warranted.

Abstract

Introduction

In the US people of color are disproportionately affected by pedestrian crashes. The purpose of this study was to examine the potential for racial bias in driver yielding behaviors at midblock crosswalks in low and high income neighborhoods located in the sprawling metropolitan area of Las Vegas, NV.

Methods

Participants (1 white, 1 black female) crossed at a midblock crosswalk on a multilane road in a low income and a high income neighborhood. Trained observers recorded (1) number of cars that passed in the nearest lane before yielding while the pedestrian waited near the crosswalk at the curb (2) number of cars that passed through the crosswalk with the pedestrian in the same half of the roadway.

Results

The first car in the nearest lane yielded to the pedestrian while they waited at the curb 51.5% of the time at the high income and 70.7% of the time at the low income crosswalk. Two way ANOVAs found an interaction effect between income and race on yielding behaviors. Simple effects for income revealed that at the high income crosswalk, drivers were less likely to yield to the white pedestrian while she waited at the curb (F(1,122) = 11.18;p = 0.001), and were less likely to yield to the black pedestrian while she was in the same half of the roadway at the high income crosswalk (F(1,124) = 4.40;p = 0.04). Simple effects for race showed significantly more cars passed through the crosswalk while the black pedestrian was in the roadway compared to the white pedestrian at the high income crosswalk (F(1,124) = 6.62;p = 0.01).

Conclusions

Bias in driver yielding behavior may be one influencing factor in higher rates of pedestrian crashes for people of color.

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NC Move Over Law. What to Do

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Move over, if possible; otherwise, slow down. When an emergency vehicle is parked or standing within 12 feet of a roadway with its warning light activated, the driver of an approaching vehicle must, as soon as it is safe, move the vehicle into a lane that is not the lane nearest the emergency vehicle and continue traveling in that lane until safely clear of the emergency vehicle. G.S. 20-157(f)(1) (note that these provisions also apply to public service vehicles). This requirement applies if the roadway has at least two lanes for traffic proceeding in the direction of the approaching vehicle and if the approaching vehicle may change lanes safely and without interfering with any vehicular traffic. If the roadway has only one lane for traffic in the direction of the approaching vehicle or if the approaching vehicle may not change lanes safely, the driver must slow the vehicle, operate it at a reduced speed and be prepared to stop until completely past the emergency vehicle.

Violation of the move over law is an infraction punishable by a hefty fine of $250.

In addition, this statute falls under the catch all provision of the code and results in 2 driving points and 0 insurance points.   \

If you must stay in your lane and cannot move over, you need to reduced your speed to at least 20 MPH under the speed limit. 

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Insurance Points

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Insurance points are different from Driving Points.

See below for more.

http://www.dmv.org/nc-north-carolina/point-system.php

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Driving while stoned.

www.kisslinglaw.com

New study shows that driving while stoned is less risky than driving while drunk.

See below for more.

http://nccriminallaw.sog.unc.edu/

Follow me on twitter @kisslinglaw

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The Future of Speeding Tickets

www.kisslinglaw.com

The future of the legal marketplace for traffic tickets? Listening to the radio yesterday, I heard an ad for berniesez.com, a website where folks can upload their traffic tickets and get quotes from multiple lawyers on handling their cases.

http://nccriminallaw.sog.unc.edu/

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Credit Card Payment for Fines and Court Costs

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The NC courts system does not currently accept payment with credit cards at the courthouse.  You can pay through NCEZpay but that does not allow you to go to court and get your ticket reduced.  The NC Court System is now testing a pilot program in 4 counties where they are accepting payment at the court house for court costs and fines with credit cards.  There is a $1.00 fee plus a 2% fee of the total amount charged.  They are not sure when this program will be expanded to the entire court system.