Litigants sometimes are surprised by circumstances in which a trial court’s ruling in a case is not capable of review on appeal. The court of appeals recognized one such situation earlier this week in State v. Kiselev, ___ N.C. App. ___ (May 19, 2015).
Shea Denning
News Roundup
In an odd turn of events for the person known as the “champion of the falsely accused,” WRAL reports that Christine Mumma was accused herself this week by the North Carolina State Bar of violating the Rules of Professional Conduct. Mumma serves as executive director and legal counsel for the North Carolina Center on Actual Innocence. The allegations arise from Mumma’s work to free Joseph Sledge, who spent thirty-six years behind bars for the killing of a mother and her daughter in Bladen County in 1976 before he was exonerated last January.
Speeding: Local Ordinance Violation or State Law Infraction?
Suppose a North Carolina city adopts an ordinance establishing a local speed limit of 25 miles per hour for all city streets that are not otherwise marked. Signs are posted on city streets reflecting the 25 mile per hour limit. Absent this ordinance, state law would provide for a speed limit of thirty-five miles per hour inside the municipal corporate limits. The city’s municipal code provides that violations of its provisions are not governed by G.S. 14-4, which otherwise would render the violation of a local ordinance regulating traffic an infraction. The municipal code also states that speeding on a city street is punishable by a civil penalty of $75 and requires that payment be made to the town hall. A local law enforcement officer stops a car that is traveling 40 miles per hour on a city street. May the officer issue a civil citation to the driver, requiring payment of the $75 penalty? May the officer cite the driver for speeding in violation of state law, an infraction? May the officer choose between these two methods of enforcement?
DWI Bills That Made the (First) Cut
Last week was crossover deadline at the General Assembly–a major event for lawmakers, legislative staffers, lobbyists and policy wonks. If you don’t fall into any of these categories, the deadline may not have greatly affected your work week. But because crossover marks (at least theoretically) the deadline by which non-revenue bills must pass one chamber of the legislature in order to be considered by the other during the remainder of the session, it is a good time to take stock of pending legislation. A complete listing of bills that met crossover is available here. Several of these bills would significantly amend laws related to impaired driving.
Do Implied Consent Procedures Apply to the Withdrawal of Blood Pursuant to a Search Warrant?
In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine. In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes. If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent. None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.
Nystagmus in the Courts
Jurisprudence over whether officers may testify about defendants’ horizontal gaze nystagmus (HGN) in impaired driving trials has failed to follow a smooth path. In fact, one could fairly note that more than the defendants’ eyes have jumped all over the place. First, our state supreme court said that testimony from a police officer regarding the results of an HGN test performed by the defendant was inadmissible without the evidence establishing that the HGN test was scientifically reliable. State v. Helms, 348 N.C. 578 (1998). The legislature responded by amending Rule 702 in a manner that, according to the court of appeals, “obviat[ed] the need for the state to prove that the HGN testing method is sufficiently reliable” and permitted law enforcement officers trained in administering the HGN test to testify about the defendant’s performance. State v. Smart, 195 N.C. App. 752 (2009). But forget admissibility for a moment. Does HGN evidence prove anything much anyway? A recent unpublished case from the court of appeals indicates that it does not.
We are NOT Ferguson
Being married to me is hard. My husband makes an off-hand comment about how the city must need money since the police are pulling people over left and right for speeding on the road he travels to work. What does he get in response? A lecture on the state’s uniform court system and the fines and forfeitures clause of our state constitution. Thankfully, he is a patient man. He took it so well that I thought I’d share the finer points of that discussion with you.
Does a DWI Conviction Bar a Person from Possessing a Gun?
The maximum punishment for driving while impaired in violation of G.S. 20-138.1 increased from two to three years in 2011. As a result, defendants convicted of misdemeanor DWI and sentenced at the most serious level—Aggravated Level One—are prohibited from possessing firearms by federal law. That’s because federal law prohibits firearm possession by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year, though state law misdemeanors that are punishable by a term of imprisonment of two years or less are excluded from this category of disqualifying convictions. Because North Carolina law sets out a single offense of driving while impaired, which may be punished at varying levels, rather than six separate offenses, there is a question as to whether any defendant convicted of misdemeanor DWI on or after December 1, 2011 may lawfully possess a firearm, regardless of the level at which the defendant was actually punished.
State v. Fizovic and Searching Cars for Alcohol
Author’s Note: This post has been modified from its original version in response to a helpful comment by a reader.
An officer sees a man drink from a can of beer while the man drives through a public parking deck. The officer stops the man’s car and sees the beer bottle can in plain view. He then asks the man to step out of the vehicle. May the officer open the car’s console to search for additional evidence?
News Roundup
Friday is a University holiday, so we’re rounding the news up one day early this week. Despite the short week, there is plenty of criminal law news to report.