The 300-Foot Rule Goes to Church

Last week the court of appeals decided another case involving the sex offender premises restriction in G.S. 14-208.18. The defendant was convicted of being within 300 feet of a church preschool. Continue reading

Field Sobriety Testing and the Fifth Amendment

Most drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested.  Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment:  the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination.  That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested?  Must he first be provided Miranda warnings? Continue reading

News Roundup

This week, the mighty fell. Locally, Dana Cope, the former director of the State Employees Association of North Carolina, pled guilty to spending $570,000 of the Association’s money on personal expenses, like landscaping, flying lessons, a trip to China, a home theater system, clothing, and much more. During his court appearance, Cope acknowledged “I am a thief.” He received a sentence of 58 to 82 months in prison. WRAL has the story here. Nationally, Subway spokesman Jared Fogle was sentenced to 15.5 years in federal prison after admitting he possessed child pornography and had sex with minors. The sentence exceeded prosecutors’ recommendation of 12.5 years. Fogle will also pay $1.4 million in restitution. Reuters has the details here. Continue reading

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Recent Changes to the Pretrial Release Statutes

In the 2015 legislative session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases to include dating couples. Continue reading

More About Those Weird DWI Motions Procedures

You represent a defendant charged with DWI. You move to suppress evidence in district court. The district court enters a preliminary determination in your favor. The State appeals. The superior court disagrees with the district court and remands the case with instructions to deny your motion. Your client pleads guilty. You appeal to superior court. You want the court of appeals to consider the merits of your motion. What should you do to preserve that right?

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Is North Carolina the Only State in Which the Prosecutor Controls the Calendar?

I was on a panel about criminal case calendaring yesterday at the Courts Commission. While talking to people in preparation for the event, I kept hearing one thing: that North Carolina is the only state in which the prosecutor controls the calendar. After conducting some research, I don’t think that’s quite right. Continue reading

Habitualized Sex Crimes

Suppose a defendant is convicted of a Class F–I felony that requires registration as a sex offender. He is also convicted as a habitual felon. When sentencing the defendant as a habitual felon, the court obviously will select a minimum sentence appropriate for an offense that is four classes higher than the underlying felony. But what maximum sentence should the court impose? Should it use the regular maximum sentence from G.S. 15A-1340.17(e), or the elevated sex offender maximum from subsection (f)? Continue reading

News Roundup

A divided North Carolina Supreme Court decided State v. Packingham last Friday, upholding the statutory ban on registered sex offenders using social networking websites that allow minors to join. G.S. 14-202.5. The defendant argued that the statute violated his First Amendment rights, but the court ruled that the statute targets conduct, not speech, and that any incidental burden on speech is justifiable. A law professor’s skeptical analysis of the decision is here. Another professor’s suggestion that the case may merit review by the United States Supreme Court is here. Continue reading

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Is Paddling a Student a Crime?

On the first day of elementary school each year, our teacher displayed her paddle, which was wooden with a short, solid handle. The paddle portion had holes drilled through its core.  Most school years, someone (always a boy, in my recollection), wound up being paddled. Times have changed for most students. But because a handful of schools in North Carolina still employ corporal punishment, questions continue to arise regarding when such punishment crosses the line between permissible school discipline and unlawful assault.  Continue reading

Is Involuntary Manslaughter a Lesser of Second-Degree Murder by Drug Overdose?

I’ll save you the suspense: Yes. Read on for an explanation.

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