I wrote in September 2015 that the court of appeals’ view of the admissibility of retrograde extrapolation under Daubert did not look much different from its take on the admissibility of that evidence under old Rule 702. As of yesterday, it does. The court of appeals in State v. Babich, __ N.C. App. __ (2017), changed the green light for retrograde extrapolation testimony in DWI cases to yellow.
Shea Denning
May Teachers Search Students’ Cell Phones?
I have a “friend” whose teenage son was caught using his cell phone in class. The teacher saw him using it and took the phone. She looked at the phone when she picked it up and saw displayed on its screen a snapchat from another student in the class. So she took the other student’s phone too. My friend wanted to know what the teacher’s options were after that. Could she search the contents of the cell phones she had seized?
The Role of Race—and Brain Science—in Pedestrian Fatalities
A pedestrian enters a crosswalk. A car approaches. Does the race of the pedestrian influence whether the driver stops the car or continues to drive through the crosswalk?
State v. Parisi Answers DWI Procedural Riddle
Criminal procedure aficionados, close your red books and riddle me this:
A district court judge in a DWI case preliminarily grants a defendant’s motion to suppress. The State appeals to superior court. The superior court affirms the district court’s determination and remands the case for entry of an order suppressing the evidence and dismissing the charges. The district court enters the order. Does the State have the right to appeal?
The Future of Transportation is Here—In North Carolina
Just a few short years ago, self-driving cars seemed futuristic. Now the future is here. If you drive in the Triangle, self-driving cars will soon appear on a road near you.
Special Rules for Pleading and Trying Habitual Offenses
Author’s Note: The North Carolina Supreme Court reversed the court of appeals decision in State v. Brice, which is discussed in the body of this post. You can read about the state supreme court’s ruling here.
Everyone knows that having a criminal history is bad. John wrote earlier this week about C-CAT, an on-line, searchable database that helps folks identify many of the non-criminal consequences of a conviction—like losing a professional license. The criminal consequences of an earlier conviction are, in contrast, much easier to figure out. A criminal record generally results in greater punishment for new crimes. For a handful of North Carolina crimes, a prior conviction for a similar offense increases the grade of the new offense – sometimes converting what would otherwise be a misdemeanor to a felony. Special rules govern the charging, arraignment, and trial for such offenses. The failure to follow them is the subject of considerable case law from our state’s appellate courts, including two recent opinions from the North Carolina Court of Appeals.
Alcohol Concentration Restrictions and Ignition Interlock: What’s the Law?
Among the questions I am most frequently asked is: What is the proper charge when a person violates an alcohol concentration restriction on his or her driver’s license? As soon as I answer that question, the next one comes in: Is the answer the same if the person violates an ignition interlock restriction? When I say that it is not, additional questions follow. If you too are unsure about the rules for charging and processing a person who is suspected of violating one of these types of license restrictions, I’m hoping the rest of this post will clear things up.
Tolling the Statute of Limitations after State v. Turner
The court of appeals held last month in State v. Turner, __ N.C. App. __, 793 S.E.2d 287 (2016), temp. stay allowed, __ N.C. __ (2016), that the issuance of a magistrate’s order charging a defendant with driving while impaired did not toll the two-year statute of limitations applicable to misdemeanors. The court reasoned that the provision setting forth the statute of limitations, G.S. 15-1, was explicit in requiring that an indictment or presentment be issued within two years. The court said that only one extension of this rule had been recognized: Pursuant to State v. Underwood, 244 N.C. 68 (1956), a defendant may be tried upon a misdemeanor charged by a warrant within two years of the offense. Because Turner was not charged by presentment, indictment or warrant and the State failed to “commence the prosecution of its case” within two years of the offense, the court of appeals ruled that the trial court properly dismissed the charges.
Last month’s blog commentary included a lively dispute about whether trial courts are bound to follow Turner given the state supreme court’s issuance of a stay. Regardless of whether Turner is binding precedent (and I don’t think it yet is, given the stay), trial courts may rely on its reasoning. Moreover, the state supreme court may ultimately decline to review the opinion or, if it does grant review, may affirm its holding. Thus, prosecutors across the state are considering whether and how the State may satisfy or toll the statute of limitations for misdemeanors charged by citation or magistrate’s order.
There are at least four categories of such misdemeanors, and the implications for each are discussed below.
State v. Wilson: Was the Defendant Seized When He Stopped Upon the Officer’s Signal?
Joshua Wilson had just pulled his truck out of the driveway of a residence in Burlington when he saw a police car parked in the road in front of him. A uniformed officer had gotten out of the car and was walking toward the residence. When the officer saw Wilson, he waived his hands back and forth in the air to tell Wilson to stop his car. Wilson stopped. The officer approached the truck on the driver’s side. The window was down, and he smelled the odor of alcohol. Wilson was arrested shortly thereafter for driving while impaired. The question on appeal was whether he was seized by the officer when he stopped his truck.
Court of Appeals Says Magistrate’s Order Does Not Toll Statute of Limitations
The court of appeals held yesterday in State v. Turner, __ N.C. App. ___ (2016), that the issuance of a magistrate’s order charging a defendant with driving while impaired did not toll the two-year statute of limitations for misdemeanors. Because the defendant was not tried within two years of the offense, the appellate court ruled that the trial court properly dismissed the charges. This opinion is as big as surprise to criminal procedure experts as the outcome of last month’s presidential election was to pollsters. Does it mean that district courts must dismiss charges for misdemeanor offenses that occurred more than two years ago?