Things are going full tilt at the General Assembly. One new bill of interest this week would reduce the per se impairment blood alcohol content from .08 to .05. If the bill passes, this 50-state comparison chart suggests that North Carolina would be the second state, after Utah, to adopt the lower limit. The National Highway Traffic Safety Administration reports that Utah’s adoption of the .05 standard has saved lives and recommends that other states follow suit. Keep reading for more news.
Case Summaries – N.C. Court of Appeals (Feb. 21, 2023)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on February 21, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Possession of Khat
Readers may have heard of the plant commonly known as khat or qat (or Catha edulis, for the botanically inclined). The plant is indigenous to Africa and is popular in parts of that continent, as well as parts of the Middle East, and is commonly and legally used in some of those places. When the plant is ingested, it acts as a stimulant. As with more familiar stimulants, users tend to experience mild feelings of alertness and euphoria in smaller doses; larger doses can induce delusional thinking, mania, paranoia, and heart problems (among other potential harmful effects). Users typically ingest the plant by chewing its leaves. Exotic though it may be, the plant occasionally finds its way into North Carolina. I have heard anecdotal reports of its presence in Durham, and this recent story from WRAL News noted that it was found in Johnston County as a part of an unrelated investigation. This post examines state law on possession and distribution of khat. Read on for the details.
The School of Government Has a New Dean
The School of Government was founded 92 years ago as the Institute of Government. To say that the School has had continuity of leadership would be an understatement. The top job has been held by just four people, three of whom served more than two decades each:
- Albert Coates was the founder of the Institute and served as Director from 1931 to 1962.
- John Sanders served as Director from 1962 to 1973. He stepped away from the Institute to serve the university system from 1973 to 1978, during which time Henry Lewis served as Director. Sanders returned and resumed his role from 1979 to 1992.
- Since 1992, the School has been led by Mike Smith, first as Director of the Institute, and since 2001 as Dean of the School of Government.
Things will change on February 27, when our colleague Aimee Wall – currently the School’s Senior Associate Dean – will become Dean of the School. It is a watershed moment for many reasons, and while I don’t expect any disruptive changes to our work in criminal law, I thought readers would be interested to know of this transition. Below, I’ve pasted the message Chancellor Kevin Guskiewicz and Provost Chris Clemens sent to the University community about Aimee’s appointment.
News Roundup
The legislature is in session and a bill to make the Moravian cookie the official state cookie was introduced this week. According to my admittedly casual research, only a few states have official cookies. The first was New Mexico, which adopted the biscochito/bizcochito as the state cookie in 1989. Judging from this recipe, it seems to be sort of a cinnamon sugar concoction made with brandy. Read on for even more impactful news.
Court of Appeals Affirms Order Dismissing Media Entities’ Petition for Release of Law Enforcement Recordings in Andrew Brown Case
After Andrew Brown, Jr. was shot and killed in Elizabeth City in April 2021 by law enforcement officers who were attempting to serve arrest and search warrants on him, several media entities attempted to obtain law enforcement agency recordings of the events. The companies sought the release of those recordings from the superior court pursuant to G.S. 132-1.4A(g) and filed their request six days after the shooting using a form petition created by the Administrative Office of the Courts, AOC-CV-270. A superior court judge denied the request based on his conclusion that release would create a serious threat to the fair and orderly administration of justice and that there was a need to protect an active internal or criminal investigation. After the Pasquotank County district attorney announced that he would not seek charges related to the incident, the companies filed another petition on form AOC-CV-270 requesting release of the recordings. A different superior court judge dismissed this later petition on the basis that the petitioners were required to file a regular civil action to obtain the release of recordings under G.S. 132-1.4A(g). The media companies appealed, and, in an opinion published last week, the Court of Appeals affirmed the superior court’s ruling. See In re Custodial Law Enforcement Agency Recordings, No. COA22-446, ___ N.C. App. ___ (2023).
So Your Indictment May Be Flawed: What Now?
A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments. The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction. But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone. Our appellate courts have decided a few cases in the last several months which illustrate this complexity. This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial. My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here.
The Effect of Legal Hemp on Drug Dog Sniffs (Part II)
Last week, in Part I of this series, I discussed whether having a drug dog sniff a vehicle is a search if the drug dog might alert upon smelling hemp, a substance that is legal to possess. Today’s post focuses on what may be an even more significant question: if a dog alerts, does the alert provide probable cause to search?
News Roundup
Attorney General Josh Stein now appears to be highly unlikely to be charged criminally over a campaign ad he ran in the last election cycle. The ad charged that Stein’s opponent in the 2020 election – Forsyth County District Attorney Jim O’Neill – “left 1,500 rape kits on a shelf leaving rapists on the streets.” O’Neill complained to the State Board of Elections, contending that the ad was false and violated G.S. 163-274(a)(9), which makes it a misdemeanor to “publish . . . derogatory reports with reference to any candidate . . . knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.” The Board recommended taking no action, but Wake County District Attorney Lorrin Freeman asked the SBI to investigate further, and ultimately informed Stein that she was planning to submit the matter to a grand jury. Stein then sued in federal court, asserting inter alia that the statute is unconstitutional and seeking an injunction against Freeman. The district court declined to issue a preliminary injunction, but this week the Fourth Circuit said that it is pretty sure that the statute is unconstitutional and so the district court should reconsider. The main problem with the statute is that it “likely criminalizes at least some truthful speech,” namely, a “derogatory report[]” that is made in “reckless disregard of its truth or falsity” but that turns out to be true. Although the Fourth Circuit did not expressly instruct the district court how to proceed, any path forward for criminal charges now appears to be narrow at best. WRAL has more here. Keep reading for more news.