Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more. Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test.
Is Misdemeanor Trespassing and Misdemeanor Shoplifting Really a Felony?
The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge.
New Bulletin on Juvenile Interrogations
Nearly five years ago, the U.S. Supreme Court decided J.D.B. v. North Carolina, a case arising from the police interrogation of a middle school student in Chapel Hill. In a 5-4 decision, the Court ruled that police officers must consider a juvenile’s age when determining whether they must read juveniles their Miranda rights before questioning them. The ruling represents a major shift in Miranda jurisprudence by establishing a different standard for evaluating police interrogations of juveniles – the reasonable child standard. In the years since J.D.B., however, lower courts have not clearly defined how the reasonable child standard impacts the assessment of whether a juvenile was “in custody.” The application of this new standard also raises questions about how North Carolina courts evaluate custody determinations in the school setting. These and other issues are addressed in “Applying the Reasonable Child Standard to Juvenile Interrogations After J.D.B. v. North Carolina” (No. 2016/01), a new Juvenile Law Bulletin.
News Roundup
The unexpected death of Supreme Court Justice Antonin Scalia continues to dominate the national news this week. USA Today reports that the high court appeared to be split in a 4-4 deadlock at oral argument of a criminal case involving the exclusionary rule on Monday; Orin Kerr has more analysis of the legal issue here. President Obama made a guest post to SCOTUSblog where he explains that he takes his constitutional duty to appoint judges to the Supreme Court seriously, and vows to nominate someone to fill Scalia’s seat in the coming weeks. The Washington Post reports that Scalia was in the company of “high-ranking members of an exclusive fraternity for hunters called the International Order of St. Hubertus” at the Cibolo Creek Ranch on the weekend of his death. More news after the break:
When CRV Is Worse than Revocation
Some felony probationers ordered to serve a period of confinement in response to violation (CRV) wind up spending more time behind bars than they would have if their probation been revoked.
Who Can Be a Supreme Court Justice?
My daughter came home from elementary school last week with notecards seeking support for her nomination to serve as a justice on the U.S. Supreme Court.
I think that is it pure coincidence that her politicking coincided with the nationwide interest in potential nominees for the position following the death of Justice Antonin Scalia. But because I, like everyone else, had been thinking about how the vacancy on the court would be filled and by whom, her work got me thinking: Who exactly can be a Supreme Court Justice?
North Carolina Court of Appeals Issues Ruling on a Strip Search by Law Enforcement Officers
In 2013, I wrote two posts on strip searches by law enforcement officers, which are available here and here. This post discusses the first published North Carolina appellate court strip search case since these posts: State v. Collins, 2016 WL 385690 (N.C. App., Feb. 2, 2016).
Three Ways to Lose the Right to Counsel?
In an opinion last week, the court of appeals helpfully summarized the law about how a defendant may lose the right to counsel, and may have recognized a new way that a defendant may lose that right. The case is State v. Blakeney, and this post explores it briefly.
News Roundup
U.S. Supreme Court Justice Antonin Scalia died during the weekend at a hunting ranch in Texas. As the Washington Post reports, his unexpected death has enormous political and legal consequences. Some conservative politicians have argued that President Obama should not nominate a successor for Scalia’s seat on the court because the vacancy comes in the last year of Obama’s presidency. Obama has indicated that he will nominate a candidate because he has a constitutional responsibility to do so. More after the break:
Advising a Defendant Who Does Not Speak English of His Implied Consent Rights
I almost missed this one. While I regularly monitor the published opinions of our state’s appellate courts, I generally skip the unpublished decisions. So I initially overlooked the court of appeals’ opinion in State v. Martinez, ___ S.E.2d ___ (N.C. App. Jan. 5, 2016) (first released as unpublished, but later published), which addresses a recurring question in DWI cases: Must a defendant who does not speak English be advised of statutory implied consent rights in a language that he or she understands?