Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance.
Crimes and Elements
How Serious Is a “Serious Bodily Injury”?
Here’s a question for you: which of the following injuries is more serious?
- The victim, a police officer injured while fighting with a suspect, “sustained puncture wounds [from bites] on his left forearm and right bicep.” The officer testified that the bites were extremely painful, and they caused “severe bruising and depressions, [and] permanent scarring . . . includ[ing] a large circle on his right bicep, ‘just over a half an inch to an inch in a circle’ with a ‘large depression[,]’ and ‘a deep ridge’ on his left arm. The officer experienced loss of sleep and extreme stress [and] had to be tested multiple times for communicable diseases.”
- The victim, a six-year-old girl injured when her father “forcibly twisted” her leg until it broke, suffered a “spiral fracture” of her femur. A physician described such fractures as “incredibly painful,” and the child required morphine to control her discomfort. She was placed in traction and underwent surgery to place titanium rods in her leg. The surgery resulted in lifelong scars. The victim was in a cast for several weeks, and used a wheelchair and a walker during her recovery. She regained the full use of her leg in five to eight months, but had to repeat kindergarten as a result of missing so much school.
You can vote on the answer below. Once you have voted, read on to see how the court of appeals viewed these two scenarios.
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Is Necessity a Defense to DWI?
After a bad break-up, Dan drives to a local bar, where he begins drinking. He hasn’t planned in advance how he is going to get home. If he drinks too much to drive, he thinks, he will summon a ride on his smart phone. Dan is on his seventh drink in two hours when a man storms through the front door of the bar, waving an assault rifle and threatening to shoot up the place. Dan bolts for the nearest exit, jumps in his car, and drives away. Less than a half-mile away from the bar, Dan runs through a red light and is stopped by a law enforcement officer. Dan is subsequently charged with driving while impaired. At trial, he asks the judge to instruct the jury on the defense of necessity. Is Dan entitled to that instruction?
Defrauding an Older Adult is Its Own Kind of Crime
The art of swindling is as old as time, and governments have worked for centuries to combat the practice. Indeed, North Carolina first criminalized the obtaining of property by false pretenses in 1811. In more recent years, the legislature has focused on a set of victims who are especially vulnerable to financial fraud: older adults. Financial exploitation of such a person is its own kind of crime—a crime that may be subject to more severe punishment than other types of fraud and that encompasses a broader array of deceptive behavior. Assets obtained through such fraud may also be frozen or seized pending the resolution of the criminal case to ensure that the victim receives the restitution he or she is owed.
Theft, Possession, and Hendricksen
Defendant commits an armed robbery in county A, obtaining stolen goods that he transports to county B. May the defendant be prosecuted and punished for armed robbery in county A and be separately prosecuted and punished for possession of stolen goods in county B?
Swatting: An Ill-Defined Crime with Potentially Deadly Consequences
I learned a new word on my drive home yesterday: swatting. Ari Shapiro, host of NPR’s All Things Considered, explained in this report that swatting occurs when a person falsely reports a crime in an effort to cause a large group of officers or a SWAT (Special Weapons and Tactics) team to converge on the scene. The prank is associated with video gamers who reportedly have used it as a form of revenge as well as entertainment.
Criminal Law Holiday Movies (You Might Be Surprised)
I’ve been saving this post for the holidays because it suits the season and, after a long break, it seemed like a good way to start back to work (at least for me). What’s your favorite criminal law holiday movie? It’s hard to pick just one.
A Look Around the Country at the Admissibility of Evidence in Drugged Driving Cases
Last week I wrote about studies examining the prevalence of driving with drugs in one’s system. Research has shown that an increasing number of drivers have detectable drugs in their symptoms. What we don’t yet know is how many of those drivers are impaired by drugs and whether the incidence of drug-impaired driving is increasing.
We do know, of course, that drug-impaired driving is dangerous. Policy-makers in North Carolina and elsewhere have attempted to combat the problem by enacting zero-drug-tolerance laws and provisions that prohibit driving with a threshold of a drug or its metabolites in one’s body. And law enforcement officers across the country have created detection protocols that are geared specifically toward the drug-impaired driver rather than a driver impaired by alcohol.
Notwithstanding these measures, drug-impaired driving continues to be prosecuted in North Carolina and other states under statutory schemes and law enforcement protocol that were primarily written and developed to deter, detect and punish alcohol-impaired driving.
Courts across the country are increasingly being required to consider how those schemes and that protocol apply to drug-impaired driving prosecutions. This post will summarize recent court rulings on the admissibility in drugged driving prosecutions of (1) evidence regarding a defendant’s performance on field sobriety tests, (2) testimony about the effects of certain drugs, and (3) lay opinion testimony about the person’s impairment. It will also review recent opinions regarding the quantum of proof necessary to establish drug-impaired driving. It will conclude with a case that demonstrates why drugged driving is a matter of serious concern.
DWI Day at the Court of Appeals
Yesterday was opinion day at the court of appeals. And while it wasn’t officially designated as DWI opinion day, several of yesterday’s opinions resolve significant and recurring issues in DWI litigation. Today’s post will cover the highlights.
New Resource on Immigration Consequences of a Criminal Conviction
I am excited to announce the release of the 2017 edition of our manual, specific to North Carolina law and practice, on the immigration consequences of a criminal conviction. We hope that this online manual, which can be viewed at no charge, will be a useful resource in understanding this challenging area of law.