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Decriminalizing Certain Offenses to Reduce Appointed Counsel Costs

February 1st, 2010
By Shea Denning

The Office of Indigent Defense Services (IDS) is studying data related to the disposition of seventeen types of misdemeanor charges during the 2009 fiscal year to determine whether decriminalization of these offenses might be an appropriate way to reduce the cost to the State of providing appointed counsel.  Section 15.17 of S.L. 2009-451 directed IDS to consult with other court system actors regarding means of cutting costs, including the possibility of decriminalizing minor misdemeanor offenses for which jail sentences are rarely or never imposed.  (The bill also directs IDS to study ways to improve the screening and processing of potentially capital cases, but this post focuses on the first directive.)   The following types of charges are to be studied.

  • G.S. 14-168.4:  Failure to return property rented with purchase option
  • G.S. 14-107(d)(1):  Simple worthless check
  • G.S. 20-34: Allow unlicensed person to drive
  • G.S. 20-111(1):  Driving or allowing another to drive an unregistered vehicle
  • G.S. 20-28(a):  Driving while license revoked (Not based on DWI)
  • G.S. 20-111(2):  Expired registration card/tag
  • G.S. 20-7(e):  Failure to comply with license restriction
  • G.S. 20-7.1:  Failure to notify DMV of an address change
  • G.S. 20-57(c): Failure to sign registration card
  • G.S. 20-111(2):  Fictitious/canceled/revoked registration card/tag
  • G.S. 20-7(a): License not in possession
  • G.S. 20-7(a):  No operator’s license
  • G.S. 20-57(c):  No registration card
  • G.S. 20-313(a):  Operate vehicle no insurance
  • G.S. 20-141(j1):  Speeding more than 15 mph over limit or over 80 mph
  • G.S. 20-127(d):  Window tinting violation
  • G.S. 113-270.1B(A): Fishing without a license

Two of these offenses, driving while license revoked and operating a vehicle with no insurance, are Class 1 misdemeanors, punishable by up to 120 days imprisonment.  The rest are Class 2 misdemeanors, with the exception of a first offense of fishing without a license, which is a Class 3 misdemeanor.

Ten of the above offenses are included on the traffic waiver list, and the fishing offense appears on the hunting, fishing, and boating waiver list.  A defendant may resolve a waiver offense without having to appear in court by paying court costs and a designated penalty. Offenses for which court appearances may be waived generally are considered less serious than offenses for which a court appearance is required.

A court appearance currently is required for the following offenses to be studied:

  • failure to return rental property,
  • simple worthless check,
  • driving while license revoked,
  • display or possession of a fictitious registration card or tag,
  • operating a vehicle without insurance, and
  • speeding more than 80 miles per hour or more than 15 mph over the speed limit while driving more than 55 mph.

Of course, decriminalizing these offenses does not mean legalizing the conduct they currently regulate.  Instead, any proposal that may result from the study presumably would recommend designating certain offenses as infractions, defined under G.S. 14-3.1 as noncriminal violations of the law.  Because there is no right to counsel at state expense to defend against an infraction, decriminalization presumably would reduce IDS’s costs and result in a savings to the State.

IDS plans to circulate the study results among court system actors to determine whether there is consensus about decriminalizing any of the analyzed offenses.

Editor’s note: Shea provided the document pasted below, in which IDS describes the study

IDS Study

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8 Responses to “Decriminalizing Certain Offenses to Reduce Appointed Counsel Costs”

  1. J. Powell says:

    Am I right in reading that they are considering making DWLR a non arrestable infraction? As it is now, the vast majority of revoked licenses and the resulting DWLR charges are for failure to appear for infractions. If DWLR becomes an infraction, there will be absolutely no way to “entice” these people into compliance, which is why I am always told that is why the charge is dismissed if they get their license back, no matter how many times they get caught.

    This is more of “defining deviancy down” and we have the high number of DWLRs that we have thanks to making many traffic violations infractions to begin with, and just revoking their license over and over, and I have seen people with 17 current suspensions, and finding them with six or seven is common, plus having three or four DWLR charges pending. These no compliant people have found that they can rack up revocations, then when they do get caught and actually bonded, that they can then just take care of the old citations, and then it will be dismissed. There is not any effective deterrent at the moment. Look on your dockets and see how many DWLR charges are over 6 months old. The defense attorneys keep getting them continued over and over to buy time for them to pay off their tickets, and then they get dismissed. Now it’s gotten to the point if you get one revoked for DWI or some other reason other than FTA, then they just get it continued until the revocation period is over and get their locense back, and those get dismissed also. That is why their is such a high VD rate, and DWLR cases should be a very short trial if there is one. I can understand maybe VD’ing somebody that had one FTA and one DWLR and got it taken care of by the second setting, but those with multiple charges in multiple counties?

  2. Prosecutor says:

    We have already chopped a bunch of time off of structured sentencing (and for the worse offenders, btw…) in the name of saving money. Now we are trying to decriminalize crimes?

    As for the DWLR, I have some people who have racked up four DWLR charges at the same time. Some people just need to go to prison to get the idea.

    If you want to save resources, get rid of de novo appeal for certain offenses. The routine in my county is to have the defendant drag their feet in trying to clean up their records, finally plead guilty in District Court, appeal it up to Superior Court, and then continue to drag their feet. I have defendants who have been wasting time for over a year while they try to get their records cleaned up. And I, of course, have to take time away from dealing with rapists and murderers to deal with it.

    I think some of the motivation here, especially with the NOL charge, is to help out illegal aliens. Most of my NOL charges are illegals who will never be able to get a license.

  3. J. Powell says:

    Prosecutor, What I don’t understand is the multiple, multiple continuances for those that are permanently revoked several times over, and the earliest that they could get their licenses is 2017. What they are really hoping for is a day that the officer can’t be there and then they will yell, “It’s been on for 11 months and we want to try it, but your officer isn’t here, I want a V/D”

    How many here remember that there used to be a statute for DWL PERMANENTLY revoked, and then they removed it.

    Where does it go from here?

    DA’s, you have heard the LEO side, can I hear yours? I’ve always said the best arguments are with attorneys since passion doesn’t override the facts.

    Folks, I’m sorry for my passion about this, but this slide started with the creation of infractions, and is only getting worse.

    • Prosecutor says:

      You nailed it pretty well, J. Powell. It is a great example of the games that some of our defense bar play on a daily basis. (All in the name of zealous advocacy, of course!)

      If IDS was truly interested in saving money, they would crack down on unearned fees paid to PAC (Privately Appointed Counsel). How many times have I heard a defense attorney, in the middle of taking a plea, start reciting the wrong facts about a case, forget the defendant’s name, then tell the judge, “I’ve got about 10 hours in this one, judge.” And what does IDS do in response, waste time conducting surveys and studies that do nothing but tell you what anyone in the system already knows: the defense bar blames the prosecutors, the prosecutors blame the defense bar, and the judges think it would all be better if only they had calendaring authority.

      The key thing to remember here is that IDS can claim all day long that this is about saving money, but in reality it is only about making sentencing easier for criminals, and lowering the Prior Record Level / Prior Conviction Level for the more serious cases. IDS thinks that the cost-saving argument is a real winner, and have been making that their strategy for awhile now. Case in point: look at the length of time that a capital case takes to try now a days. They think that the more expensive they can make it, the least likely the DA and LEO/LEA will seek the death penalty in the case. Always question IDS’s true motives for anything they propose.

  4. jay jay says:

    My child mother in NC have 3 dwlr, 2 speeding, 1 fict/alt tag/title, 2 veh no ins, 1 unsafe tires, 1 fail retn porp rentd, and 3 simple worthless check charges that i know of courtrodates is 15-30 nov 2010 and her license been revoked since the 90′s and no ins but how can a person get away with all this But if it was me I would be in alot of trouble, Can anyone give me insight on how she get away with all this stuff Like I said all this is only from the opening a book to the table of contents with her still have the rest of the book to go..

  5. Jeff Nieman, a prosecutor in Orange and Chatham County, wrote an interesting piece about the issue of DWLR in North Carolina in this month’s NCBA Criminal Justice Section Newsletter. The problem with DWLR is the cascading revocations that accompany the convictions. One of Jeff’s suggestions is to let someone serve their time and once released, allow them to start over with a driver’s license–assuming there is no other reason for the revocation, i.e. DWI. Sounds like a sensible solution to me. Court costs, fines, FTA fees, restoration fees, collectively have skyrocketed, and I believe that sometimes DA’s, Judges, and Defense Attorneys alike, fail to realize just how much of an impact these “monies owed” have on people struggling to get by.

  6. john t says:

    I’ve been on revoked license for 10 years. Not for DWI but because I can’t afford to pay my fines. I have children and I work. They originally suspended my license when I was 19 for a speeding ticket.I had just paid them off and gotten them back,keep in mind it was only 400 dollars I had just paid to get them back,not much right..add that up over several years now. Taking someone freedom away for driving is absurd. I have gotten most of my dwlr from license checks. I’m a good driver and I don’t act like I did when I was 19. Never had a DWI or dui but go to jail almost everytime.sure you say a scooter is legal…scooters are good for local stuff but they don’t last long when you have to drive an hour each way. Also they don’t get your children to a Dr or bring groceries home. Money is my issue but,and my children come before any states cashbox in their court houses. The fines are outrageous,and u just recently lost a good job because I had to pull 90 days…for driving to work…come on prison for driving? Wake up America you’re imposing unjust penalties on people and costing us too. Stop the jailtime for driving or let us serve our time and have our license back. Quit the greed,most of America already knows the courts are a joke,most laws are in place to get the money of the people as a revenue.

  7. john t says:

    Sorry for the typos

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