A probation violation need not be alleged with the technical precision of an indictment, but there are still some rules about the right way to prepare a probation violation report.
Want a DMV Hearing? Soon, You’ll Have to Pay in Advance.
On Monday, I spoke to a group of DMV hearing officers about administrative order writing. These are the officials who hold hearings to determine whether a person’s driver’s license is subject to revocation or reinstatement. The bases for hearing officer action run the gamut. They exercise discretion in determining whether a person’s license is revoked for accumulating too many driver’s license points or for excessive speeding. They evaluate and weigh evidence to determine whether a person charged with an implied consent offense did, in fact, willfully refuse chemical testing. They hold hearings to determine whether a person whose license has been restored following a DWI has violated a condition of the reinstatement. They also determine whether to conditionally restore the licenses of people convicted of impaired driving before the end of the statutory revocation period.
I can’t say whether the hearing officers learned much from me. But, as is always the case when I interact with a room full of public servants, I learned something from them on Monday. Beginning in January 2018, DMV plans to assess fees for these types of hearings. Some of them are as high as $450.
Court of Appeals Rules that a Citation Was Sufficient Even Though It Failed to Allege Multiple Elements of an Offense
Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).
Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well.
News Roundup
A Raleigh murder made national news this week with reports indicating that the suspect told a 911 dispatcher that taking too much cough medicine may have contributed to the killing. Late last week, Matthew James Phelps was charged with murdering his wife, Lauren Ashley-Nicole Phelps. According to WRAL, Matthew called 911 to report that he had awoken from a dream to discover that Lauren was dead and that he was covered in blood. He also told the dispatcher that he had taken too much cough medicine, which he was using to help him sleep. The News & Observer has a story here that explores whether an ingredient in cough medicine can cause hallucinations, psychosis, or violent behavior. Keep reading for more news.
Sex Offenders in Emergency Shelters
With Hurricane Harvey fresh in our minds, Hurricane Irma is bearing down on Florida. The storm could work its way up the coast to the Carolinas by early next week, possibly following a path similar to last year’s Hurricane Matthew or Hurricane Hugo in 1989. Governor Cooper has declared a state of emergency for all 100 counties, ordering state and local government entities to be prepared and temporarily suspending certain motor vehicle restrictions.
A question that sometimes arises when the government sets up emergency shelters is whether registered sex offenders may use them. The sheriff of Polk County, Florida, tweeted yesterday that registrants would not be allowed in shelters there. What is the law in North Carolina?
Office Hours at the Judicial College
Are legal issues keeping you up at night? Have we got a program for you! Let’s talk it out tomorrow during Office Hours at the Judicial College.
Domestic Violence Law and Procedure
In getting ready for the North Carolina magistrates’ fall conference and a session that I’m teaching on issuing process in domestic violence cases, I began thinking about the ways that North Carolina criminal law addresses domestic violence. The North Carolina General Assembly has made numerous changes and additions in this area of criminal law, collected below. If I omitted some part of North Carolina criminal law involving domestic violence cases, please let me know.
News Roundup
Though there is not an immediate connection to criminal law, a roundup of news of any sort this week would be incomplete without recognition of the devastation caused by Hurricane Harvey. As we all know, the storm brought relentless rain to southeastern Texas this week, causing unprecedented and ongoing flooding in the Houston area. We commend the law enforcement officers, the first responders, the emergency management professionals, the government officials, and the private citizens who have worked tirelessly to ensure the safety of their communities and neighbors. Our thoughts are with everyone who has been affected by the storm. Keep reading for more news.
“Raise the Age” Is Now the Law in North Carolina
North Carolina is no longer the only state in the U.S. that automatically prosecutes juveniles as adults beginning at age 16. In June, the General Assembly ended a century long practice of prosecuting teens as adults by enacting the Juvenile Justice Reinvestment Act as part of the 2017 state budget, which raised the age of criminal responsibility to 18. As a result, most 16 and 17-year-olds will be prosecuted in juvenile court beginning December 1, 2019. There are, however, some exceptions. Here’s what you should know about this historic reform.
NC Supreme Court Evaluates Traffic Stop for Fishtailing in Snow
State v. Johnson, __ N.C. __ (August 18, 2017) opens like a novel:
Defendant was stopped at a red light on a snowy evening. When the light turned green, defendant’s truck abruptly accelerated, turned sharply left, and fishtailed, all in front of a police officer in his patrol car. The officer pulled defendant over for driving at an unsafe speed given the road conditions.
On second thought, maybe this reads more like a bar exam question (or a Dan Fogelberg song).
What say you, barristers? Was the stop lawful?