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.
Shea Denning
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.
Should Prosecutors Change the Way They Work?
Advocates of criminal justice reform have called for numerous policy changes in recent years, including raising the age of juvenile jurisdiction, eliminating or reducing reliance on money bail, decreasing monetary penalties for poor defendants, ending license revocations as a sanction for failing to appear for court or pay monies owed, and abandoning mandatory minimum sentencing. Many have also advocated for a re-examination of the role of the prosecutor, suggesting that prosecutors could better channel their power and discretion to lessen racial disparities, reduce recidivism, rehabilitate offenders, and cut rates of incarceration. Two reports published last December focus on this re-envisioned prosecutorial function. The first, 21 Principles for the 21st Century Prosecutor, suggests practical steps that prosecutors can take to reduce incarceration and increase fairness. The second, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, explores what prosecutors in four prosecutorial districts think about definitions of success, office priorities, community engagement, and racial disparities.
Studies Tout Safety Benefits of Expanded Ignition Interlock
The National Center for State Courts recently published an Ignition Interlock Report reviewing the latest research on ignition interlock programs. Two of the studies cited reported efficacy rates striking enough to attract the attention of any policy wonk interested in highway safety.