Procedure

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Immigration Detainers

An immigration detainer is one of the key tools that Immigration and Customs Enforcement (ICE) uses to apprehend individuals who come in contact with local and state law enforcement agencies. Sometimes, after a defendant has been arrested for a crime, an ICE officer will file an immigration detainer (Department of Homeland Security form I-247A) 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 and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant.

My colleague Jeff Welty blogged about immigration detainers several years ago. Recently, my colleagues and I have received a lot of questions about the scope of judicial officials’ authority when navigating immigration detainers. This post answers some of those questions.

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When is Driving While License Revoked a Grossly Aggravating Factor?

There are six sentencing levels for Driving While Impaired (DWI) convictions. A defendant is only exposed to the three most severe levels (A1, 1, and 2) if a judge or jury finds the existence of one or more “grossly aggravating factors” beyond a reasonable doubt. These factors are listed in G.S. 20-179(c). One of them is “[d]riving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to G.S. 20‑28(a1).” Rather than applying to all revocations, G.S. 20-28(a1) applies when person’s license is revoked for an “impaired driving revocation.”  At first glance, it appears any time a person is convicted of DWI, if their license was revoked for an impaired driving revocation, this grossly aggravating factor would apply and elevate their sentencing exposure—but that may not be the case. Read on for more.

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Procedures for Criminal Bench Trials in Superior Court

The North Carolina Constitution historically mandated trial by jury in all criminal cases in superior court. See N.C. Const. Art. I, Section 24 (2014) (“No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.”); State v. Hudson, 280 N.C. 74, 79 (1971) (“In this State, the only exception to the rule that ‘nothing can be a conviction but the verdict of a jury’ . . .  is the constitutional authority granted the General Assembly to provide for the Initial trial of misdemeanors in inferior courts without a jury, with trial De novo by a jury upon appeal. . . . It is equally rudimentary that a trial by jury in a criminal action cannot be waived by the accused in the Superior Court as long as his plea remains ‘not guilty.’”); State v. Bunch, 196 N.C. App. 438, 440 (2009), aff’d, 363 N.C. 841 (2010) (“Unlike the right to a jury trial established by the Sixth Amendment of the U.S. Constitution, the right to a jury trial pursuant to Article I, Section 24, cannot be waived.”); see also State v. Holt, 90 N.C. 749, 750–51 (1884) (“The constitution (Art. I, §13) provides that “no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal.’”). Thus, a defendant who wished to proceed to trial in superior court had to do so before a jury. There was no option for a criminal trial in superior court in which the judge served as the finder of fact – a procedure known as a bench trial. The state constitution was, however, amended effective December 1, 2014 (for criminal offenses arraigned in superior court on or after that date) to allow a defendant in a noncapital case to waive the right to a jury trial with the consent of the trial judge. S.L. 2013-300.

As a result, Article I, Section 24 of the North Carolina Constitution currently provides:

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

G.S. 15A-1201 prescribes the procedures for waiving jury trial in superior court in favor of a bench trial. G.S. 15A-1201(b) provides that when a defendant — with the consent of the trial judge — waives the right to trial by jury, the whole matter of law and fact “shall be heard and judgment given by the court.” Those determinations include aggravating factors in impaired driving cases under G.S. 20-179 and aggravating factors in structured sentencing cases under G.S. 15A-1340.16.

So how is it done?

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Preservation Reservations in State v. Bell

The defendant in State v. Bell, No. 86A02-2 (N.C. March 21, 2025), failed to object to gender-based discrimination during jury selection. Accordingly, the North Carolina Supreme Court concluded that the “defendant’s J.E.B. claim was not preserved for appellate review.” Slip Op. at 2. If the Supreme Court were reviewing a judgment of conviction on direct appeal, this would not be surprising: a defendant’s failure to raise a constitutional issue at trial generally precludes a court’s consideration of the issue on appeal. But the Supreme Court in Bell was instead reviewing the denial of the defendant’s motion for appropriate relief, where the applicability of the preservation rule is less clear. This post considers Bell’s application of that rule to a postconviction motion.

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Motor Vehicle Seizures: Temporary Release Pending Trial

In previous posts, I’ve addressed the expedited scheduling requirements and opportunities for permanent release of motor vehicles seized pursuant to G.S. 20-28.3. Today, I’ll address the ways a motor vehicle may be released temporarily pending trial or final disposition of the underlying offense. Generally speaking, this temporary release permits a motor vehicle owner to obtain temporary possession of the vehicle conditioned on meeting certain prerequisites and agreeing to return the motor vehicle on the day of the forfeiture hearing. Read on for more. 

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Children and Consent Searches

Some time ago, I received an email from a researcher asking whether a minor may consent to the search of his or her cell phone. The question made me realize how little I knew about children’s authority to consent to searches more generally. So I cracked some law books, and wrote this post as a primer for anyone who may be as uninformed as I was.

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Pretrial Release of Seized Motor Vehicles

In every case where a person is charged with felony speeding to elude arrest pursuant to G.S. 20-141.5(b) or (b1), the motor vehicle driven is subject to seizure and forfeiture. This is also true in DWI cases where, at the date of offense, the defendant’s driver’s license was revoked for an impaired driving revocation or the defendant did not have a valid license nor insurance. When in district court, these cases have expedited calendaring requirements (discussed here). This is in part to preserve the vehicle’s value while the case is pending. Upon seizure, the vehicle is usually first towed to a local storage facility, then transferred to the facilities of a state contractor within a few days. There are fees for towing, as well as accruing fees for storage. Whether the motor vehicle is released to its owner, a lienholder, or forfeited to the county board of education, these towing and storage fees must be paid. Often, these fees are paid out of the proceeds of the sale of the vehicle. While expediting the underlying case towards resolution is one way to minimize these fees, another is release of the vehicle before case disposition. This post addresses the circumstances under which a vehicle may be fully released pretrial and does not have to be brought back for a later forfeiture hearing.

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2025 Expunction Guide Available for Free!

With a teaser like that, who could resist reading more? The 2025 edition of my online guide to expunctions is now available on the School of Government’s website at https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/. It is a free resource on expunctions and other forms of relief from the consequences of a criminal conviction. Compared to previous years, the 2024 legislative session was relatively quiet on the expunction front, but the General Assembly made some important changes, discussed briefly below and in more detail in the revised guide.

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Shifting the Landscape for the Domestic Violence 48-Hour Rule?

The “48-hour rule,” as it is known in domestic violence cases, has been covered on this blog numerous times over the years (see here, here, and here). The rule shifts the responsibility of setting conditions of pretrial release from magistrates to judges in certain cases involving allegations of domestic violence. The rule is set out in G.S. 15A-534.1, which provides that a judge—rather than a magistrate—must set a defendant’s pretrial release conditions during the first forty-eight hours after arrest for certain offenses.

Judicial officials and practitioners who handle criminal domestic violence cases should be familiar with both the statute and the long-standing ruling in State v. Thompson, 349 N.C. 483 (1998), that required dismissal of charges where G.S. 15A-534.1 was violated. Last year, the court of appeals decided State v. Tucker, 291 N.C. App. 379 (2023), which takes a different approach to determining the outcome of a domestic violence case that involves a 48-hour violation. This brief post details the facts of both cases and what Tucker suggests for domestic violence cases moving forward.

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Indictment Technicalities: Gone Today and Here Tomorrow

Singleton was supposed to make things simpler. As previously reported, in that case our Supreme Court attempted to eliminate some “obsolete technicalities” of the common law by abrogating the jurisdictional indictment rule, whereby a defective pleading deprives the trial court of jurisdiction. My colleague Danny Spiegel called it a sea change. The Court of Appeals decided two cases in September that illustrate continuing complexity in this area. In State v. Pierce, COA23-348 (N.C. Ct. App. Sept. 3, 2024), the court held the trial court did not lack jurisdiction to accept a pro se defendant’s waiver of indictment, despite a statutory prohibition on such uncounseled waiver. And in State v. Wilkins, COA23-839 (N.C. Ct. App. Sept. 17, 2024), the court found the trial court lacked jurisdiction due to a fatally defective indictment. This post considers those two cases.

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