A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.
Last week, the North Carolina Court of Appeals in State v. Watson (October 18, 2016) ruled that an officer’s erroneous completion of a juvenile waiver of rights form did not bar the admissibility of the juvenile’s confession. This post will discuss North Carolina statutory law concerning juvenile warnings and rights and the Watson ruling. Continue reading
It’s election season, and friends and family have asked me a few questions about crimes associated with voting. I’m not an expert on election laws – here at the School of Government, Bob Joyce is our go-to guy on such issues – but I’ve tried to respond correctly. Read on for the questions and answers. Continue reading
As the News & Observer reports, the Orange County Republican Party headquarters in Hillsborough was firebombed and vandalized over the weekend. According to the report, “[a] flaming bottle was thrown through a window of the office” and an adjacent building was vandalized with paintings of a swastika and the phrase “Nazi Republicans leave town or else.” The incident drew the attention of both presidential candidates, and vice-presidential candidate Mike Pence and Governor McCrory each visited the headquarters. McCrory has offered a $5,000 reward for information leading to an arrest in the case. Keep reading for more news.
Today’s post discusses two recent federal cases involving the use of Tasers in North Carolina jails. (The post draws from an article I originally prepared for the North Carolina Jail Administrators’ Association newsletter.) Continue reading
Last week, I was driving with my 14-year-old son and his 15-year-old friend in the car. My son criticized me for not turning left out of parking lot when, according to he-who-has-never-driven, I had “plenty of time” to do so. His friend, who recently got his learner’s permit, piped up and said, “Driving is not as easy as it looks.” You can say that again, friend.
Every year as I do presentations about new criminal law legislation, a smaller piece of legislation catches my eye. Invariably as I look into the legislation, I learn about the concerns that led to the legislation. An example this year is S.L. 2016-113 sec. 3 (S 770), which allows the culling of feral swine—that is, wild boar—from aircraft. At first glance, the description conjures up images of hunting parties taking to the sky to go after wild boar. That’s not what the legislation contemplates. Taking wild animals from or with the use of aircraft remains a misdemeanor under North Carolina law. See G.S. 113-191.1(b)(1); G.S. 113-135(a). The legislation adds a new statute, G.S. 113-299, creating a narrow exception from this prohibition for wildlife officers and similar federal employees. What’s behind the legislation? What does it allow? What doesn’t it allow? Continue reading
In a recent interview with Katie Couric, Justice Ginsburg discussed San Francisco 49ers quarterback Colin Kaepernick and his practice of kneeling during the national anthem to protest racial injustice. She described Kaepernick’s conduct as “dumb and disrespectful,” compared it to flag burning, and said “I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it.” Is it OK for a judge to say that? Continue reading
Hurricane Matthew hit Eastern North Carolina hard over the weekend. Twenty North Carolinians lost their lives and many communities experienced severe flooding. The Fayetteville Observer has extensive coverage of the aftermath of the storm, including remarkable aerial photographs of flooded Lumberton. Governor McCrory has activated the Hurricane Matthew Relief Fund and the North Carolina Department of Justice is warning residents of areas damaged by the hurricane to be wary of scams in the wake of the storm. A number of courthouses are closed because of the storm and the AOC has a list of closings available here. Best wishes for a speedy recovery from the hurricane; keep reading for more news.
Today’s post is a return to the Sentencing Whiteboard, this time to explain active sentences for aggravated level one DWI. As Shea and I have discussed in earlier posts (here, here, and here, among others), they are different from other DWI sentences. No parole. No good time. Not cut in half. The video explains why, and describes how typical aggravated level one sentences are administered by the county jails through the Statewide Misdemeanant Confinement Program. As you’ll see, sentences for this most serious level of misdemeanor impaired driving are in many cases longer than a felony habitual DWI. I hope you’ll take a look. Continue reading