Dismissing a Probation Violation

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Unlawful Racing of Motor Vehicles

When I think of unlawful racing, scenes from old movies come to mind. I see guys (more specifically, James Dean and John Travolta) in white t-shirts and leather jackets behind the wheels of vintage Fords and Mercurys. Unfortunately, however, unlawful racing has not been relegated to the past. There were nearly 500 charges for unlawful speed competition in North Carolina last year, a misdemeanor offense that can result in the revocation of a person’s driver’s license as well as the seizure of the motor vehicle driven—not to mention serious injury or death.
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An Officer’s Reasonable Mistake of Law and Recent Court of Appeals Ruling

The United States Supreme Court in 2014 ruled in Heien v. North Carolina, 135 S. Ct. 530 (affirming State v. Heien, 366 N.C. 271 (2012)), that an officer’s objectively reasonable mistake of law in making a stop or arrest is reasonable under the Fourth Amendment. Last week, the North Carolina Court of Appeals ruled in State v. Eldridge (September 20, 2016), that officer’s mistake of law when making a stop of a vehicle was not objectively reasonable based on the facts in that case. The Eldridge ruling is the subject of this post. Continue reading

Ordering Occupants Out of Their Vehicles — And into Officers’ Cruisers

May an officer, during a traffic stop, order an occupant out of the stopped vehicle? Into the officer’s vehicle? The law on this question has become unsettled. Continue reading

News Roundup

Protests erupted in Charlotte this week in response to an officer-involved shooting of a black man, Keith Lamont Scott, on Tuesday afternoon.  The protests, to which law enforcement officers have responded by donning riot gear and using tear gas to disperse crowds, are making national news.  One person was shot during the protests on Wednesday night.  The Charlotte Observer reports that Governor McCrory has declared a state of emergency for the city and has deployed the National Guard and Highway Patrol troopers to assist local law enforcement.  At the time of writing, there are conflicting reports regarding the circumstances of the Scott shooting.  The Charlotte Police Department said that Scott was armed with a handgun when he was shot; some witnesses claim that he was reading a book.  Keep reading for more news.

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State v. Lindsey:  Another Close Call on Probable Cause for DWI

Do the following facts provide probable cause to arrest for impaired driving?

An officer pulls behind a vehicle at a stoplight around 3 a.m. and sees that its registration is expired.  He activates his blue lights, and the defendant turns into a nearby parking lot. When the officer approaches the car, the defendant tells him that his license is revoked for DWI.  The officer smells a medium odor of alcohol coming from the defendant’s breath and sees that the defendant’s eyes are red and glassy. The officer performs an HGN test, noting 5 of 6 indicators of impairment. The defendant tells the officer that he had three beers at 6 p.m. the previous evening. 

The court of appeals answered this question earlier this week in State v. Lindsey, ___ N.C. App.  ___ (2016).  Its answer, and the outcome of the case, may surprise you.

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All the Probation Effective Dates

Any person, felon or misdemeanant, can be on probation for up to 5 years. In some cases—assuming you did the extension just right—probation could be as long as 8 years. So, there are some pretty old probation cases hanging around. But probation in North Carolina doesn’t look the same as it looked eight years ago. If you read this blog, you know that there have been many changes to North Carolina’s probation law over the past half-decade or so. The proper way to handle a violation hearing varies for the 86,653 people on probation today, depending on the date of their underlying offense, the date they were placed on probation, the date of their alleged violation, and the date of the violation hearing itself. Today’s post pulls a summary of those changes into one place, in the hope that it will help you apply the right law to the particular probationer before the court. Continue reading

Meet the New IDS Assistant Director and General Counsel

The Office of Indigent Defense Services (IDS) is responsible for providing legal representation for indigent defendants and respondents in North Carolina. It is a small agency with a big job, spanning representation in criminal prosecutions, parental rights proceedings, involuntary commitment cases, and other cases affecting important rights. This blog post introduces Whitney Fairbanks, the new assistant director and general counsel of IDS. That position is often the point of contact for lawyers, court officials, and others involved with indigent defense. The following is from an interview I conducted of Whitney last week. Continue reading

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Searches of Vehicles and Occupants Based on the Odor of Marijuana

May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions. Continue reading

News Roundup

Trial began this week in Oregon for Ammon Bundy and six codefendants facing various charges stemming from their armed occupation of the Malheur National Wildlife Refuge earlier this year.  The Oregonian reports that people began lining up at 7 a.m. on Tuesday to get a seat inside the courtroom. According to USA Today, each of the seven defendants is charged with conspiring to impede federal land managers through force and intimidation, and five defendants are charged with firearm offenses.  In the waning days of the standoff, the de facto spokesman for the occupation, LaVoy Finicum, was shot and killed after he fled a traffic stop and, in an ensuing confrontation with police officers and FBI agents, appeared to be preparing to draw a handgun.  Keep reading for more news.
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