Late last month, the Supreme Court decided Mitchell v. Wisconsin, 588 U.S. ___ (June 27, 2019), a case in which the petitioner argued that the State of Wisconsin violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant, following his arrest for impaired driving. Like many other states, including North Carolina, Wisconsin has a state statute that permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s conviction, though no single opinion from that court commanded a majority. The Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.” Though no justice found such a statutory exception and the judgment below was vacated, the outcome was not a win for the petitioner. Instead, a plurality of the court announced a State-favorable exigency rule, which it instructed the lower court to apply on remand.
Shea Denning
Naming the Victim of a Sexual Assault
Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?
Court of Appeals Considers Propriety of Opinion Testimony Based on Crash Scene Investigation
May a law enforcement officer who personally investigates, but does not observe, a vehicle crash testify as to his opinion about who was driving the vehicle? Does the answer depend upon whether the officer is qualified as an expert in accident reconstruction? The court of appeals considered those questions in State v. Denton, ___ N.C. App. ___ (June 4, 2019), decided yesterday.
To Prove Aggravating Factors for DWI in Superior Court, State Must Provide Notice
One person convicted of misdemeanor impaired driving may be placed on probation and ordered to complete 24 hours of community service. Another may receive an active sentence of three years’ imprisonment. The severity of the sentence depends largely on the presence of aggravating factors, which must be proved by the State.
When a misdemeanor impaired driving conviction entered in district court is appealed for trial de novo in superior court, the State must notify the defendant no later than ten days before trial that it intends to prove one or more aggravating factors. G.S. 20-179(a1)(1). If the State fails to provide that notice, the factors may not be used by the superior court to determine the defendant’s sentence. The court of appeals recently affirmed in State v. Hughes, ___ N.C. App. ___ (April 16, 2019), that there is no exception to this rule for aggravating factors that were found by the district court below.
Prosecutors, Ethics, and Plea Bargaining in Misdemeanor Cases
The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors.
Sixth Circuit Holds that Chalking Vehicle Tires is a Fourth Amendment Search
The Court of Appeals for the Sixth Circuit ruled last week that city parking enforcement officers’ use of chalk to mark the tires of parked vehicles to track how long they have been parked is a Fourth Amendment search. And, on the facts before it, the court held that the city failed to show that the search was reasonable.
Revoking Licenses for Failure to Pay: Is Change on the Horizon?
The revocation of driver’s licenses for unpaid court costs and fines has been a hot topic of late. Much of the focus has centered around the spiral of debt that can result when an indigent person’s license is revoked for this reason. The narrative goes like this: The person is convicted of a relatively minor violation of the motor vehicle laws. Court costs and a fine are imposed. The person, who is financially unable to do so, fails to pay those amounts. Forty days after the judgment, the clerk of court reports the failure to pay to DMV. DMV mails a revocation order to the person, which becomes effective 60 days later. The person could forestall or end the revocation by paying the amounts owed, but she lacks the funds to do that. Yet she must drive in order to keep her job. So, notwithstanding the revocation, she continues to drive. Soon, she is charged with driving while license revoked and is convicted. Court costs are imposed again. And again, she lacks the funds to pay. DMV issues another revocation. When this cycle repeats itself over time, the person may wind up owing hundreds – or even thousands – of dollars in court debt, which, again, she lacks the resources to pay.
Thirsty for Criminal Law Trivia this Thursday?
Earlier this week, I was asked to provide a criminal law case update to a group of attorneys. I started the session by giving them a quiz, which I thought could go one of two ways. Possibly, they’d know all the answers and tune me out for the next hour. On the other hand, maybe they’d have some uncertainty, and some interest, and would tune in to see what the court said. Fortunately, on Tuesday, the latter sentiment prevailed.
Given that our readers are voracious consumers of criminal law, I thought you might enjoy taking the quiz and seeing what you know – or don’t – about recent decisions from the appellate courts. Interest piqued? Try your hand at answering the questions below.
Appellate Bracketology
This March, you almost need a bracket to keep up with recent personnel changes in the state’s judicial branch. Not only were a handful of new appellate judges elected to office in 2018, but, just in the last month, the governor appointed a new chief justice and announced plans to appoint a sitting court of appeals judge to fill the associate justice seat she vacated. In the same time frame, the General Assembly passed legislation to prevent the departure of a sitting court of appeals judge from reducing the size of that court. Having trouble keeping up? This post will review recent events impacting the composition of the state’s appellate courts and judicial branch leadership and preview potential changes to come.
Court Vacates Stalking Convictions on First Amendment Grounds
Yesterday the court of appeals vacated Brady Lorenzo Shackelford’s convictions for felony stalking on the basis that the prosecution of Shackelford for violating G.S. 14-277.3A impermissibly infringed upon his constitutional right to free speech. This post will review the court’s opinion in State v. Shackelford, ___ N.C. App. ___ (March 19, 2019), consider how it might affect future prosecutions, and suggest statutory amendments to stave off future constitutional challenges.