Jeff Welty

Court of Appeals Rules that a Citation Was Sufficient Even Though It Failed to Allege Multiple Elements of an Offense

Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).

Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well.

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Many Questions and a Few Answers about Britny’s Law

This session, the General Assembly passed S.L. 2017-94, which creates a rebuttable presumption that certain domestic violence homicides are premeditated and deliberate and therefore constitute first-degree murder. WRAL explains here that the measure is known as  Britny’s Law “in memory of Britny Jordan Puryear, a 22-year-old who was shot and killed by her live-in boyfriend, Logan McLean, in their Fuquay-Varina home on Nov. 6, 2014, after a four-year abusive relationship.” The bill raises many questions, which this post attempts to answer.

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Update on Drones

I wrote about law enforcement use of drones here, and a little bit here. It is now easier than before for law enforcement agencies to acquire drones, and some agencies have done so. But courts have yet to engage with the Fourth Amendment issues that some uses of drones may present. This post provides an update on where things stand with law enforcement use of drones.

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DVPOs for Same-Sex Dating Relationships?

Domestic violence protective orders (DVPOs) are available to “persons of the opposite sex who are . . . or have been in a dating relationship,” and who are able to establish that the person that they are or were dating committed an act of domestic violence against them. Persons of the same sex who are or were in a dating relationship don’t have the same opportunity. Is that constitutional? The Supreme Court of South Carolina just addressed a related question, and its opinion suggests that the answer is no.

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Immigration Detainers

Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release — for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed — and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too.

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Legislative Changes to Which Prior Convictions Can Support a Habitual Felon Charge

S.L. 2017-176 makes two important changes to which prior convictions can support a habitual felon charge. The legislation (1) clarifies the status of prior convictions from New Jersey and other states that don’t use the term “felony,” and (2) imposes a new requirement that a prior conviction from another state be for an offense that is “substantially similar” to a North Carolina felony.

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Important Amendments to the “Revenge Porn” Statute

The General Assembly has amended G.S. 14-190.5A, the “revenge porn” statute. The statute now (1) applies to live streams as well as recordings, and (2) is not limited to images captured in the course of a “personal relationship.” However, it still leaves open questions about various types of digitally-generated images.

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Convictions for Attempted Armed Robbery Based on Evidence of the Completed Crime

In North Carolina, the general rule is that “an attempt to commit a . . . felony is punishable under the next lower classification as the offense which the offender attempted to commit.” G.S. 14-2.5. However, the armed robbery statute, G.S. 14-87, makes it a class D felony to “take[] or attempt[] to take” property from another while in possession of a dangerous weapon. The specific terms of the statute therefore create an exception to the general rule, and render attempted armed robbery the same offense class as the completed crime. The fact that attempted armed robbery is specifically set out in the armed robbery statute and is the same offense class as armed robbery has created considerable doctrinal trouble. In the past month, the General Assembly has tried to fix the problems and the state supreme court has weighed in on an analogous issue.

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What Is State Government Doing to Combat the Opioid Epidemic?

America is in the midst of an opioid epidemic, and North Carolina is no exception. The CDC reports that “[s]ince 1999, the number of overdose deaths involving opioids . . . quadrupled. From 2000 to 2015, more than half a million people died from drug overdoses.” A new report based on health insurance data put four North Carolina cities among the 25 worst in the nation for opioid abuse. What is our state government doing about this?

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