February tends to be a very popular month for sports. The Super Bowl is around the corner, NCAA basketball is heating up with conference games, we are deep into the NBA season, and even the MLB is gearing up for spring training. Fans show their support for and allegiance to teams while watching games at home, in the arena, or at a local bar. Celebration often leads to drinks, drinks occasionally lead to questionable behavior, and questionable behavior frequently leads to consequences. Although it is not a crime in North Carolina to be drunk in public, it is a criminal offense to be drunk and disorderly in public.
Crimes and Elements
Cyberstalking via Electronic Tracking Device
Most of us, at one point or another, have dedicated a day of the week to running our personal errands. That day might consist of going to the grocery store, shopping at the mall, or grabbing coffee with a friend. Now imagine on the way home from any of those activities, you get this notification on your iPhone:
You don’t own an AirTag or probably don’t even know what it is, but it doesn’t take long for you to realize that you’re being tracked. Recently, this has happened to unsuspecting people in Virginia and Arkansas.
While there have not yet been any reported instances in North Carolina, our cyberstalking statute prohibits this type of nonconsensual tracking. This post explores the cyberstalking offense as proscribed by G.S. 14-196.3.
Court of Appeals Rules on Pretrial Self-Defense Immunity Hearings
Last month, the Court of Appeals decided State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021), and a summary of the opinion is available here. Austin addressed several noteworthy self-defense issues, including the sufficiency of the state’s evidence to rebut the presumption of reasonable fear under the “castle doctrine” statutes added in 2011 and whether the trial court’s jury instructions on that issue were proper.
But first, the court had to decide whether the statutory language conferring “immunity from liability” meant that the defendant was entitled to have this issue resolved by the judge at a pretrial hearing. That’s a question I’ve been asked fairly often over the past few years, and my sense is that prior to Austin there were divergent practices on this point around the state.
This post takes a closer look at that portion of the court’s opinion, and explores what we now know and what we still don’t.
General Assembly Amends Rules for Disclosure of Body Cam Recordings
North Carolina’s law governing the disclosure and release of body-worn camera footage took center stage last spring following the shooting of Andrew Brown in Elizabeth City. John Rubin wrote here about litigation on that issue, noting that one prominent feature of the statutory scheme was that determining matters of disclosure and release “takes time.” This session, the General Assembly amended the rules governing disclosure of recordings that depict death or serious bodily injury to require (1) that a court determine whether a recording be disclosed; and (2) that the court make such a determination within seven business days of the filing of a disclosure petition. This post will review those changes.
Delta-8 THC (and beyond)
Cannabis news abounds: Virginia legalized recreational marijuana for adults 21 and up this year; our General Assembly has been considering a medicinal marijuana bill (S.B. 711); the Court of Appeals recently acknowledged (but did not decide) that precedent on the odor of marijuana as probable cause and on visual identification of the substance “may need to be re-examined” in light of legal hemp. State v. Parker, ___ N.C. App. ___, 860 S.E.2d 21, 29 (2021) (more on those issues here). I will write about the still-evolving issues with marijuana prosecutions in the state again soon. Today, though, I want to focus delta-8 THC. What is it? Is it legal? If so, how? Turns out the first question is simpler than the rest.
New Requirement that Law Enforcement Officers Intervene and Report Excessive Use of Force
The North Carolina Task Force for Racial Equity in Criminal Justice recommended in a 2020 report that state and local law enforcement agencies enact policies requiring officers to intervene in and report about circumstances in which a law enforcement officer witnesses excessive use of force or abuse of a suspect or arrestee. The North Carolina Sheriff’s Association similarly recommended in a 2020 report that all law enforcement agencies and the North Carolina Law Enforcement Accreditation Program adopt a policy requiring an officer to intervene when necessary to prevent another officer from using excessive force and to report any such intervention. This session, the General Assembly imposed such duties as a matter of state law rather than agency policy. This post will discuss current statutory law governing officer’s use of force and recent amendments enacted by S.L. 2021-137 (H 536) and S.L. 2021-138 (S 300).
Are Fake COVID-19 Vaccination Cards a Crime?
Like a growing number of schools, hospitals, businesses, and other organizations around the country, UNC announced last week that all students and employees returning to campus would be required either to provide proof that they have been vaccinated against COVID-19 or agree to participate in weekly testing for the virus. For an update on other entities that are currently implementing similar mandates, their legal authority for taking such steps, and the status of some early court challenges to these measures, Jill Moore’s recent civil blog post on those topics is a great resource.
Rather than getting vaccinated or agreeing to be tested, some people have resorted to purchasing and submitting fake vaccination cards to their school or employer. Organizations like UNC have their own disciplinary procedures to address this kind of noncompliance or fraud, but I’ve had several people ask me recently whether it’s also a crime to possess or use one of these fake cards under North Carolina law, and if so what’s the offense?
New Publication on Computer Crimes
I’m happy to announce that I recently finished an Administration of Justice Bulletin about computer-related crimes. It is a substantial expansion of my recent blog posts on the subject, providing an overview of how the statutes have been applied and some criminal scenarios that may fall within their purview. The bulletin is available here as … Read more
New Criminal Provision Prohibiting the Possession of Skimming Devices
The North Carolina legislature recently passed S.L. 2021-68 which amends the existing financial transaction card theft statute to include knowingly possessing, selling, or delivering a skimming device.
Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense
Nearly 15 years ago, the General Assembly created the misdemeanor offense of failing to appear for two years for an implied consent offense. See S.L. 2006-253 (enacting new G.S. 20-28(a3), effective for offenses committed on or after December 1, 2006). The new provision was proposed by the Governor’s Task Force on Driving While Impaired in order to impose special sanctions for a person who fails to appear in court for this particular kind of motor vehicle offense. Those sanctions include driver’s license revocation for a person convicted of a violation of G.S. 20-28(a3)(2).
In the early years after the statute was enacted, there were many questions about which offenses it applied to. Offenses charged before December 1, 2004 for which the person had already failed to appear for two years before the statute’s effective date? Arguably not, for ex post facto reasons, as Jeff opined here. What about offenses charged a bit later for which the defendant already had failed to appear before December 1, 2006? Perhaps not, given the presumption of prospective application, as I wrote here. More recently questions have arisen about how to calculate the two-year statute of limitations for such an offense. Suppose, for example, a defendant was charged with DWI on January 1, 2017. The defendant failed to appear in court. On June 2, 2021, the State charged the defendant with failure to appear for two years after being charged with an implied consent offense. Does the two-year statute of limitations in G.S. 15-1 bar the prosecution?