Omnibus Criminal Law Bill

The General Assembly has just adjourned for the year. Last week, it passed, and the Governor signed, an omnibus criminal law bill, S.L. 2015-247. This post briefly summarizes its main provisions.

• Effective December 1, the bill changes from 20 days to 40 days the period of time that a defendant has to pay costs and fines before incurring an additional $50 penalty and risking license revocation.
• Effective immediately, the bill allows chief district court judges to designate magistrates to appoint counsel and to accept waivers of counsel. Previously, only attorney magistrates could be so designated and such magistrates were authorized only to appoint counsel, not to accept waivers. I am not sure whether any districts used the previous law; the new version seems more likely to be used.
• Effective immediately, the bill amends G.S. 15A-1347 to include a provision that “If a defendant appeals an activation of a sentence as a result of a finding of a violation of probation by the district or superior court, probation supervision will continue under the same conditions until the termination date of the supervision period or disposition of the appeal, whichever comes first.” I believe that Jamie has some thoughts about this provision and I hope that he will blog about it later.
• Effective immediately, the bill amends G.S. 15A-2005, which makes intellectually disabled (formerly, mentally retarded) people ineligible for the death penalty. Besides changing the name of the condition, the bill seeks to conform the statute to the Supreme Court’s recent decisions in Hall v. Florida (summarized here) and Brumfield v. Cain (summarized here), by adding this language: “An intelligence quotient of 70, as described in this subdivision, is approximate and a higher score resulting from the application of the standard error of measurement to an intelligence quotient of 70 shall not preclude the defendant from being able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. Accepted clinical standards for diagnosing significant limitations in intellectual functioning and adaptive behavior shall be applied in the determination of intellectual disability.”
• Effective immediately, the bill makes the bond doubling provision of G.S. 15A-543(d3) optional rather than mandatory: “When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall may require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars ($1,000).” I discussed some of the difficulties with the mandatory version of the law here. Districts that amended their bond policies or issued administrative orders implementing the bond doubling provision may wish to revisit the issue.
• Effective immediately, the bill amends G.S. 15A-268, which requires the preservation of biological evidence, to allow the State to seek a court order allowing it to retain samples rather than an entire item of evidence where the item is too large to retain or should be returned to its rightful owner. This might apply, for example, where A shoots B in C’s car, leaving blood on the seats. If C is not implicated in the crime and needs the car back, the State may seek an order allowing cuttings from the seats to be retained while the car is returned to C.
• Effective immediately, the bill amends Rule 803(6), the business records exception, to allow such records to be authenticated by affidavit rather than the live testimony of the custodian. My sense is that courts often allowed authentication by affidavit even under the old rule, so this may be in the nature of a conforming change.

There are a few other provisions in the bill but those are the big ones. Over the next few days I’ll take a look to see if there are other criminal law bills that snuck in under my radar. If so, of course I will note them on the blog.