In 2007, legislative action designed to stiffen penalties for drivers charged with speeding followed close on the heels of the “Speed Unlimited” series published in the News and Observer in May 2007. Among the News and Observer’s findings was that, in 2006, only 19 percent of drivers ticketed for speeding at 100 mph or more were convicted as charged. For the year ending June 30, 2006, the newspaper reported that four of five speeding drivers had charges dismissed or reduced or were given a prayer for judgment continued.
S.L. 2007-380 (S 925) addressed two of the more prominent issues raised in the newspaper’s report: pleas to improper equipment (an infraction) and the entry of prayers for judgment continued. For offenses committed on or after December 1, 2007, the act removed a violation of G.S. 20-123.2, the statute requiring that motor vehicles be equipped with a working speedometer, as a lesser included offense of charges of speeding in excess of 25 mph over the posted speed limit. It also enacted new G.S. 20-141(p), which barred the disposition of prayer for judgment continued for a driver charged with speeding more than 25 mph over the posted speed limit. The entry of a prayer for judgment continued (if the driver does not have other prayers for judgment continued within a certain time period) prevents a driver from suffering adverse collateral consequences for license and insurance purposes resulting from a speeding conviction or adjudication. Because, however, G.S. 20-141(p) refers to the offense with which a defendant is “charged” without further specification as to the stage of the proceedings at which the charges are to be determined, questions have arisen regarding just which charge counts for purposes of limiting a judge’s authority to enter a prayer for judgment continued. “Charged” might mean the original offense charged, or it might instead refer to the offense upon which a defendant is tried or to which the defendant enters a plea of guilty or responsible.
The News and Observer followed up its 2007 series with a March 28, 2009, story, available here, in which it reported its analysis of more recent dispositions in speeding cases. The article concluded that despite the 2007 legislation, courts were “still soft” on speeders. The article alleged that “[n]early 12 percent of those charged with driving more than 25 mph over the speed limit got breaks that legislators tried to outlaw,” and referenced pleas to improper equipment and the entry of prayers for judgment continued. The article also reported that in most districts, there had been a “surge” in cases in which the charges were reduced to “10 mph or less over the limit.”
As a result of the report and varying practice among judges and districts, questions have arisen regarding whether a judge may properly enter a prayer for judgment continued when a defendant is originally charged with speeding more than 25 mph over the speed limit but pleads to speeding 25 mph or less over the speed limit.
My view is that the charge properly considered by the judge is the charge to which the person pleads guilty or responsible or upon which the defendant is tried. If that charge differs from an earlier charge, then the earlier charge does not bind the judge’s sentencing discretion. Interpreting “charged” in G.S. 20-141(p) to refer to the charge at the time the case is heard in court comports with manner in which cases are prosecuted under state law. Pursuant to G.S. 7A-61, the district attorney is the official responsible for preparing the trial dockets and prosecuting all criminal actions requiring prosecution in the superior and district courts in his or her district. The prosecutor is authorized by G.S. 15A-922 to supersede a citation and all previous pleadings in a misdemeanor case by filing a statement of charges at any time before arraignment in district court. Thus, the prosecutor has the ultimate say regarding the charges upon which the defendant is tried. The prosecutor’s amendment of the charges stated on the citation by striking through the original speed and replacing it with a different speed is procedurally akin to the filing of a statement of charges, which “may charge the same offenses as the citation, criminal summons, warrant for arrest, or magistrate’s order or additional or different offenses.” In light of the district attorney’s prosecutorial authority, and his or her ability to supersede a citation as the state’s pleading in a misdemeanor case by filing a statement of charges, see G.S. 15A-922, it seems incongruous to construe “charged” in G.S. 20-141(p) as referring to a charge that has been amended by the official responsible for prosecuting the case.
Thus, if a defendant is originally charged with driving 81 mph in a 55 mph speed zone, the district attorney reduces the charge to 70 mph in a 55 mph speed zone, and the defendant pleads guilty to the latter — and lesser — charge, the judge may lawfully enter a prayer for judgment continued.