Four years ago, the General Assembly increased the criminal fine for passing a stopped school bus and enacted new license revocation and registration hold provisions. During the previous year—2012—there had been more than 1,300 misdemeanor charges for passing a stopped school bus and three felony charges, two for unlawfully passing a stopped school bus and striking a person and one for doing so and causing death. Not much has changed. In 2016, there were 1,400 misdemeanor charges for passing a stopped school bus and three felony charges for doing so and striking a person. This year, the General Assembly took a different tack. S.L. 2017-188 (S 55) authorizes counties to adopt ordinances that enforce the provisions of G.S. 20-217 by means of automated school bus safety cameras and impose civil penalties for violations.
Crimes and Elements
Expanded Expunction Opportunities
In S.L. 2017-195 (S 445), the General Assembly made several changes to North Carolina’s expunction laws. Most importantly, the act expands the availability of relief in two ways: it reduces the waiting period to expunge older nonviolent felony and misdemeanor convictions, and it allows a person to obtain an expunction of a dismissal regardless of whether the person received any prior expunctions. Because the act states that it applies to petitions filed on or after December 1, 2017, the revised statutes apply to offenses, charges, and convictions that occur before, on, or after December 1, 2017. The tradeoff for this expansion is that information about expunctions, maintained by the Administrative Office of the Courts and otherwise confidential, is available for review by the prosecutor and useable to calculate prior record level at sentencing if the person is convicted of a subsequent offense. This part of the act applies to expunctions granted on or after July 1, 2018. The act makes other changes to create more consistency and uniformity in the expunction process.
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.
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.
Whether “No” Means “No” in North Carolina
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina.
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.
Murder Charges and the Opioid Epidemic
Jeff wrote on Monday about efforts by North Carolina government officials to combat the opioid epidemic.The initiatives he highlighted, such as addiction treatment and needle exchange programs, primarily attack the problem from a public health perspective. Jeff noted the contrast between this approach and the criminal-drug-law enforcement response to the spread of crack cocaine in the 1990s.
That’s not to say, however, that the criminal justice system isn’t responding to the current crisis. In counties across the State, including New Hanover, Onslow, Pender, Pitt, Union, and Wake, prosecutors are pursuing second-degree murder charges against defendants who are alleged to have provided the opioids leading to victims’ deaths.
This post explores the basis for murder charges based on the unlawful distribution of drugs and what the State must prove at trial to establish a defendant’s guilt.
When is Ignorance of the Law an Excuse?
An ancient maxim of the law is ignorantia juris non excusat, or ignorance of the law does not excuse. Put another way, it is presumed that the public knows the laws, and a defense of ignorance is typically not allowed. This principle is at the heart of the recent decision by the state supreme court in State v. Miller, ___ N.C. ___, (June 9, 2017).
SORNA Tier Chart
Over two years ago I said I would someday try to sort North Carolina’s reportable sex crimes into the tiers set out in the federal Sex Offender Registration and Notification Act (SORNA). Today’s the day.
Don’t Instruct the Jury on a Theory that’s Not Supported by the Evidence
Some offenses can be proved by alternative theories. For example, impaired driving occurs when a person drives while (1) while under the influence of an impairing substance, (2) after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of 0.08 or more at any relevant time after the driving, or (3) with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime (7th ed. 2012). The three options noted above constitute three separate theories upon which an impaired driving conviction can rest. Similarly, kidnapping occurs when a person (1) confines, (2) restrains, or (3) removes a person and other elements are satisfied. Id. The three options—confines, restrains, or removes—constitute three separate theories upon which a kidnapping conviction can rest. Sometimes alternative theories are bound up in the definition of an element of an offense. For example, first-degree sexual assault with a child requires, among other things, that the defendant engage in a “sexual act” with the victim. Id. The term sexual act is defined to include, in part, (1) cunnilingus, (2) analingus, (3) fellatio, and (4) anal intercourse. Id. These acts constitute separate theories that can support a sex offense conviction.