To prove impaired driving, the State must establish that the defendant drove a vehicle while impaired. A person drives when he or she is “actual physical control of a vehicle which is in motion or which has the engine running.” G.S. 20-4.01(25). Sometimes the State may establish driving through direct evidence. For example, a law enforcement officer or another witness may observe the defendant driving and may testify to that fact. In other cases, a law enforcement officer may encounter the person the officer believes was driving after the driving has concluded, perhaps in or near the car or at some other location. In those cases, the State may seek to establish driving based on circumstantial evidence. The Court of Appeals’ recent opinion in State v. Rouse, 2022-NCCOA-496, __ N.C. App. ___ (July 19, 2022), considers when such circumstantial evidence is sufficient to survive a motion to dismiss.
New Podcast: The N.C. Criminal Debrief
I’m pleased to announce that a new project, the North Carolina Criminal Debrief Podcast, is up and running. As you might guess, the podcast focuses on criminal law issues affecting the state. The idea is to provide another platform for folks to stay abreast of developments in the field in a way that is accessible … Read more
Determining Eligibility for Return of Guns
Lately I have received a number of questions relating to whether it is appropriate to return guns following a temporary firearms disqualification. The issue seems to arise most commonly when a domestic violence restraining order (“DVPO”) is issued under Chapter 50B of the North Carolina General Statutes, which requires the surrender of guns by a defendant in certain circumstances and allows the defendant to seek return of the guns following the expiration of the order and final disposition of any related criminal charges. See G.S. 50B-3.1.
The issue of returning guns could pop up in other circumstances involving the seizure or surrender of guns. An interplay of state and federal law determines whether a person is disqualified from possessing firearms, temporarily or permanently, and some of the wrinkles are counterintuitive. This post examines some of the most common grounds for disqualification and discusses some limits of state authority in this area. It’s long, but I hope readers find it useful.
Does the First Amendment Protect a Right to Verbally Abuse the Police?
Editor’s note: This post contains vulgar language that isn’t suitable for children and quite possibly many adults. If you’re an email subscriber, your spam filter probably won’t like it, either. Also, it is quite long.
A federal court of appeals recently ruled in favor of a man who called a group of police officers “bitch ass fucking pigs,” “motherfuckers,” and “dirty rat bastards.” It found that his arrest on disorderly conduct charges was unjustified because “mere epithets” directed at a law enforcement officer, no matter how coarse or profane, do not constitute fighting words and are protected by the First Amendment. Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022). This raises the question: do police officers really have to put up with this?
News Roundup
Matthew Fishman, a sergeant in the Wayne County Sheriff’s Office, was shot and killed this week while attempting to serve involuntary commitment papers. He leaves behind a wife and two children, as well as many other friends and family members. Two other deputies were also shot but will survive. The man they were trying to serve shot and killed himself before a SWAT team entered his home. ABC11 has the story here. Read on for more, and less tragic, news.
Case Summaries – N.C. Court of Appeals (August 2, 2022)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 2, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Additions and Amendments to Organized Retail Theft Laws
The North Carolina General Assembly recently passed S.L. 2022-30 (S 766) which increases the penalties for organized retail theft, provides additional penalties for damage to property or assault of a person during the commission of organized retail theft, and clarifies the procedure for the return of seized property to the lawful owner. The new criminal provisions go into effect on December 1, 2022 and apply to offenses committed on or after that date.
What I Learned from Reviewing 279 Search Warrants
Over the past several months, I’ve been dropping by clerks’ offices to look at search warrants. I’ve made it to six offices, including offices in eastern, central, and western North Carolina, and in urban and rural areas. I’ve reviewed and made notes on 279 warrants and have at least skimmed hundreds more. The warrants I’ve reviewed were sought by 38 different agencies for a range of offenses. What follows are a few observations based on what I saw.
2021 Statistical Report for Driving While Impaired Convictions Now Available
Last week, Jamie blogged about the 2021 Structured Sentencing Statistical Report from the North Carolina Sentencing and Policy Advisory Commission. As Jamie noted, that report contains detailed information related to felony and misdemeanor sentences imposed in Fiscal Year 2021, including the most commonly used felony grid cell, the number of convictions by district, average probation length, and typical sentencing outcomes for the most charged offenses. Because that report analyzes felony and misdemeanor convictions and sentences imposed under the Structured Sentencing Act, it does not include information about one of the most commonly charged misdemeanors in North Carolina: driving while impaired, which is sentenced under the sentencing scheme set out in G.S. 20-179. The Sentencing and Policy Advisory Commission prepares a separate report each year analyzing those convictions, and the Driving While Impaired Convictions Statistical Report for Fiscal Year 2021 is available here. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2020 through June 30, 2021.
New Edition of Arrest, Search, and Investigation in North Carolina Now Available
The indispensable search and seizure legal reference is back and better than ever! That’s right, the sixth edition of Arrest, Search, and Investigation in North Carolina is now available for purchase here on the School of Government’s website. Read on for more information about the content, changes, and pricing of the new edition.