Shea Denning, Author at North Carolina Criminal Law

Oklahoma v. Castro-Huerta Affords Concurrent Jurisdiction to States for Crimes Against Indians in Indian Country

September 15, 2022 by Shea Denning

A few years ago, I wrote this post analyzing criminal jurisdiction on the Qualla Boundary in Western North Carolina. I explained the jurisdictional rules for prosecuting crimes committed on the Qualla Boundary, or Eastern Cherokee Indian Reservation, as follows:

State jurisdiction.

North Carolina has exclusive jurisdiction over a non-Indian who commits a crime defined by state law against another non-Indian on the Qualla Boundary.

North Carolina has exclusive jurisdiction over a non-Indian who commits a victimless crime defined by state law on the Qualla Boundary.

Federal jurisdiction.

The federal government has exclusive jurisdiction over “major crimes” committed by Indians on the Qualla Boundary.

The federal government has exclusive jurisdiction over non-Indians who commit crimes against Indians on the Qualla Boundary.

The federal government has jurisdiction over other crimes committed by Indians against non-Indians on the Qualla Boundary unless the defendant already has been punished by the tribal court.

The federal government has jurisdiction over victimless crimes committed by Indians on the Qualla Boundary unless the defendant already has been punished by the tribal court.

Tribal jurisdiction.

The tribe has jurisdiction over an Indian who commits a crime that is not defined as a “major crime.”

Update. A decision from the United States Supreme Court last term likely changed one of those rules. The Court in Oklahoma v. Castro-Huerta, 597 U.S. ___, 142 S.Ct. 2486 (2022), held in a 5-4 decision that the state and federal governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country unless state jurisdiction is preempted.

EWarrants, Errors, and First Appearances, Oh My!

September 7, 2022September 7, 2022 by Shea Denning

Last July, the North Carolina Administrative Office of the Courts (AOC) launched a new application for generating criminal process and pleadings: eWarrants. This application replaced NCAWARE and is part of the court system’s migration to eCourts, a digital system that will replace the current paper-based system for maintaining court records. Given the scope of eWarrants, it may not be surprising to hear that the rollout was not seamless. Indeed, the thousands of magistrates, clerks, deputy clerks, and assistant clerks who became immediate users of the application soon identified defects and issues, many of which have subsequently been resolved. One such issue was the application’s failure, in certain circumstances, to print out charging language on criminal process and pleadings such as magistrate’s orders and warrants for arrest. When the issuing official does not immediately detect and remedy such an error, a judge who later holds a first appearance on such a charge may wonder how to proceed. This post will review the judge’s options in such a circumstance.

DMV Hearings and Procedural Due Process

August 31, 2022 by Shea Denning

Earlier this year, the North Carolina Court of Appeals in Edwards v. Jessup, 282 N.C. App. 213 (2022), considered whether a license revocation hearing in which a hearing officer employed by the Division of Motor Vehicles (DMV) both elicited and evaluated evidence, ultimately ordering revocation, violated the petitioning driver’s right to due process. Spoiler alert: The Court held that the DMV hearing process did not violate the driver’s constitutional rights. Continue reading to learn why.

State v. Rouse and Circumstantial Evidence of Driving

August 11, 2022 by Shea Denning

To prove impaired driving, the State must establish that the defendant drove a vehicle while impaired. A person drives when he or she is “actual physical control of a vehicle which is in motion or which has the engine running.” G.S. 20-4.01(25). Sometimes the State may establish driving through direct evidence. For example, a law enforcement officer or another witness may observe the defendant driving and may testify to that fact. In other cases, a law enforcement officer may encounter the person the officer believes was driving after the driving has concluded, perhaps in or near the car or at some other location. In those cases, the State may seek to establish driving based on circumstantial evidence. The Court of Appeals’ recent opinion in State v. Rouse, 2022-NCCOA-496, __ N.C. App. ___ (July 19, 2022), considers when such circumstantial evidence is sufficient to survive a motion to dismiss.

2021 Statistical Report for Driving While Impaired Convictions Now Available

July 28, 2022 by Shea Denning

Last week, Jamie blogged about the 2021 Structured Sentencing Statistical Report from the North Carolina Sentencing and Policy Advisory Commission. As Jamie noted, that report contains detailed information related to felony and misdemeanor sentences imposed in Fiscal Year 2021, including the most commonly used felony grid cell, the number of convictions by district, average probation length, and typical sentencing outcomes for the most charged offenses. Because that report analyzes felony and misdemeanor convictions and sentences imposed under the Structured Sentencing Act, it does not include information about one of the most commonly charged misdemeanors in North Carolina: driving while impaired, which is sentenced under the sentencing scheme set out in G.S. 20-179. The Sentencing and Policy Advisory Commission prepares a separate report each year analyzing those convictions, and the Driving While Impaired Convictions Statistical Report for Fiscal Year 2021 is available here. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2020 through June 30, 2021.

Does NC DMV Learn of Convictions in Other States?

July 22, 2022July 14, 2022 by Shea Denning

(Author’s Note: This post was updated on July 22, 2022, to note that NC DMV reports all in-state convictions for drivers licensed in another state to the state of record.)

If a North Carolina resident with a North Carolina driver’s license is convicted of a motor vehicle offense in Virginia, will the NC DMV learn of the conviction?

Yes.

If a Virginia resident with a Virginia driver’s license is convicted of a motor vehicle offense in North Carolina, will the Virginia DMV learn of the conviction?

Yes.

Keep reading to find out why.

News Roundup

July 8, 2022July 8, 2022 by Shea Denning

Once again, the leading news story of the week is a mass shooting. This one occurred on Monday during a Fourth of July celebration in Highland Park, Illinois, a neighborhood dubbed Chicago’s “Mayberry.” The gunman reportedly shot from a rooftop, killing seven people and wounding more than 30 others. Officials recovered 83 bullet casings from the scene. Twenty-one-year-old Robert Crimo III has been arrested in connection with the shootings and has been charged with seven counts of first-degree murder. Keep reading for more news.

Enforcing Ignition Interlock Requirements

June 15, 2022 by Shea Denning

I wrote last week about changes to North Carolina’s ignition interlock statutes that were effective June 1, 2022. As I noted in that post, one of those changes was to eliminate the time and purpose restrictions that otherwise apply to limited driving privileges if ignition interlock is required as a condition and the person is driving a designated vehicle equipped with ignition interlock. Another was to require vendors to waive a portion of ignition interlock costs for a person ordered by a court or required by statute to install ignition interlock but who is unable to afford the system. These changes and others enacted by S.L. 2021-82 were recommended by the Ignition Interlock Subcommittee of the Statewide Impaired Driving Task Force as part of a package of reforms designed to expand the use of ignition interlock and, in turn, to improve traffic safety. It remains to be seen whether the legislation will have that effect.

One determinant may be whether drivers see the benefit of broader driving privileges as being worth the cost of ignition interlock. A judge may be more likely to impose the condition when it is sought by an applicant. Another factor may be whether judges believe that ignition interlock is an effective countermeasure to impaired driving (researchers in fact identify interlock as among the leading countermeasures) and whether ignition interlock requirements in limited driving privileges are enforced in practice. This post addresses this last issue by reviewing the mechanisms for enforcing ignition interlock requirements and the sanctions for violation of ignition interlock conditions imposed by a court as part of a limited driving privilege.

Ignition Interlock Changes Effective June 1

June 14, 2022June 8, 2022 by Shea Denning

Last year, the General Assembly enacted significant changes to the state’s ignition interlock laws. See S.L. 2021-182. Some of those changes became effective June 1 and are reflected in revised limited privilege order and application forms published by the Administrative Office of the Courts (AOC). This post reviews those changes and links to the revised forms.

Does an NC Limited Driving Privilege Authorize Driving in Another State?

June 2, 2022 by Shea Denning

Conviction of a host of criminal offenses (many, but not all involving vehicles) may lead to the revocation of a person’s driver’s license by the North Carolina Division of Motor Vehicles (NCDMV). See, e.g., G.S. 20-13.2, 20-16, 20-17, 20-17.3. For certain types of revocations when statutory criteria are satisfied, a state court judge may issue a limited driving privilege that authorizes a person to drive during certain hours for limited purposes, notwithstanding the revocation of the person’s driver’s license. See, e.g., G.S. 20-179.3. Questions occasionally arise about whether the issuance of such a privilege authorizes driving in another state.