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.
Tag Archives: driving
Everyone knows that it is unlawful to text while driving in North Carolina. But what’s the legal status of all of the other distracting things people do with their phones? Is it unlawful to take a selfie while driving? To post the selfie to Instagram? To look at a friend’s driving selfie on Instagram? To read another friend’s Facebook status update? To search the web for the latest weather forecast? Continue reading →
Fifteen years ago, the General Assembly enacted S.L. 1997-16, implementing graduated driver’s licenses requirements for people under the age of 18, who are termed provisional licensees. Pursuant to G.S. 20-11, driving privileges are granted to minors on a limited basis and are expanded as a provisional licensee meets additional requirements. The process is designed to ensure that provisional licensees have both instruction and experience—elements the legislature deems essential for safe driving—before obtaining a driver’s license.
Amendments to G.S. 20-11 in the years since adoption of graduated licensing have further restricted driving by provisional licensees by limiting the number of passengers under 21 who may be in the vehicle and by prohibiting mobile phone use by such drivers. Nevertheless, the issue of unsafe driving by teenagers continues to plague North Carolina and its legislature.
S.L. 2011-385 enacts several provisions, effective October 1, 2011, designed to address this problem.
First, the act amends G.S. 20-11 to require that applicants for limited and full provisional licenses submit to DMV driving logs signed by a supervising driver. To obtain a limited provisional license, the applicant’s driving log must list 60 hours of driving, at least 10 hours of which occurred at night. No more than 10 hours of driving per week may be counted. An applicant seeking a full provisional license must submit a log detailing 12 hours of driving, at least 6 hours of which occurred at night. If DMV has cause to believe that a driving log has been falsified, the applicant must complete a new driving log and is not eligible to obtain the license for which he or she applied for six months.
The act’s second approach to curbing unsafe driving is to require the immediate revocation of a provisional license when the licensee is charged with a misdemeanor or felony motor vehicle offense that is defined as a criminal moving violation. A “criminal moving violation” is a violation of Part 9 or 10 of Article 3 of Chapter 20 that is punishable as a misdemeanor or felony offense. The term does not include offenses listed in G.S. 20-16(c) for which no driver’s license points are assessed, nor does it include equipment violations in Part 9 of Article 3 of Chapter 20. Thus, for example, the unlawful use of a blue light on a vehicle in violation of G.S. 20-130.1 is not a criminal moving violation because that offense is an equipment violation codified in Part 9 of Article 3 of Chapter 20. In contrast, speeding more than 15 miles per hour over the speed limit or more than 80 miles per hour in violation of G.S. 20-141(j1) is a criminal moving violation as this offense is a misdemeanor codified in Part 10 of Article 3 of Chapter 20 and is not listed as a conviction for which no points may be assessed in G.S. 20-16(c).
New G.S. 13-3 provides that if a law enforcement officer has reasonable grounds to believe that a person under the age of 18 who has a limited learner’s permit or a provisional license has committed a criminal moving violation, the person is charged with that violation, and the person’s license is not subject to civil revocation for a violation of the implied consent laws (you can read more about those types of civil license revocations here) the law enforcement officer must execute a revocation report and take the provisional licensee before a judicial official for an initial appearance. This requires law enforcement officers to arrest provisional licensees charged with misdemeanor motor vehicle offenses, such as speeding, for which drivers typically are cited and released.
The revocation report must be filed with the judicial official (typically, a magistrate) conducting the initial appearance on the underlying criminal moving violation. If a properly executed report is filed with a judicial official when the person is present, the judicial official must, after completing any other proceedings, determine whether there is probable cause to believe the conditions requiring civil license revocation pursuant to G.S. 20-13.3(b) are met. If the judicial official finds probable cause, he or she must enter an order revoking the provisional licensee’s permit or license for 30 days. The provisional licensee (unlike a person whose license is revoked for an implied consent offense pursuant to G.S. 20-16.5) is not required to surrender his or her permit or license card. The clerk must notify DMV of the issuance of a G.S. 20-13.3 revocation order within two business days. A person whose license is revoked under G.S. 20-13.3 is not eligible for a limited driving privilege.
S.L. 2011-385 directs DMV to study the issue of teen driving and the effectiveness of the act’s provisions. DMV specifically must determine whether, beginning October 1, 2011, there has been a decrease in any of the following types of incidents involving provisional licensees: property damage crashes, personal injury crashes, fatal crashes, moving violations, and seat belt violations. DMV must report its findings to the Joint Legislative Transportation Oversight Committee by February 1, 2014.
[Editor’s note: This post was revised slightly on January 25, 2011, in response to a helpful comment.]
Here’s a quiz.
Ashley Angel, who is 21 and a senior in college, leaves the library, where she has been diligently studying for mid-term exams for the previous six hours, to drive to a party a few miles from campus. On the way, she picks up her friends, Bethany Bedlam and Diana Daring, who also are 21. Bedlam and Daring have spent the last few hours gearing up for the party rather than studying. Bedlam gets into cab of Angel’s pick-up truck with an open bottle of King Cobra malt liquor in her hand. Daring hops into the truck bed with an open beer. At the next stoplight, Angel drives up next to a police vehicle. The officer sees Bedlam holding the bottle of malt liquor, which clearly is half-full, though the cap is screwed on top of the bottle. From her perch in the bed of the truck, Daring drinks from her bottle of beer and waves to the officer. When the light turns green, the police officer pulls behind Angel’s car and activates the blue lights and siren on her cruiser. Which of the following is a true statement?
A. Angel has violated North Carolina’s open container law by driving a motor vehicle on a highway while there is an open alcoholic beverage in the passenger area of the motor vehicle.
B. Bedlam has violated North Carolina’s open container law by possessing an open alcoholic beverage in the passenger area of a motor vehicle.
C. Daring has violated North Carolina’s open container law by possessing an open alcoholic beverage and consuming it in the passenger area of a motor vehicle.
D. All of the above statements are true.
E. Only B and C are true.
F. There is no open container violation in this case.
I wanted to print the correct answer in tiny font upside down at the end of this post. But Jeff, our resident blog meister, doesn’t know how to do that. [Editor’s note: Don’t blame the messenger — I don’t think our blog software supports upside down text! Tiny, I could do.] So, to avoid spoiling the surprise by putting the answer right here, I’ll devote the rest of this post to a discussion of the controlling statute.
The prohibition against transporting an open container is codified in G.S. 20-138.7. There are two types of violations. First, it is an infraction to possess an alcoholic beverage in other than the unopened manufacturer’s original container or to consume an alcoholic beverage in the passenger area of a motor vehicle while the vehicle is on the highway. See G.S. 20-138.7(a1). The passenger area of a motor vehicle is defined as “the area designed to seat the driver and passengers and any area within the reach of a seated driver or passenger, including the glove compartment.” G.S. 20-138.7(f). Neither the trunk nor the area behind the last upright back seat of a station wagon, hatchback, or similar vehicle is considered part of the passenger area. Thus, the bed of Angel’s pick-up truck, where Daring is seated, is not part of the passenger area.
There are a few exceptions to the rule prohibiting possession and consumption of open alcoholic beverages in the passenger area of a motor vehicle. It’s okay to consume or possess an open alcoholic beverage in the passenger area of a motor vehicle that is designed, maintained, or used primarily for the transportation of persons for compensation. Ergo an of-age bride and groom can sip champagne in the limousine as they are leaving the reception without fear of violating the law. Folks also may lawfully consume or possess open containers of alcohol in the living quarters of a mobile home, house car, or house trailer. (In case you are wondering, it takes more than a pillow and change of clothes to qualify as a “house car.” Such a vehicle must have at least four of the following facilities: cooking, refrigeration, self-contained toilet, heating or air conditioning, a portable water supply system including a faucet and sink, separate 110-125 volt electrical power supply, or an LP gas supply. G.S. 20-4.01(27)(d2).) Thus, as you’ve no doubt deduced, Bedlam has violated the open container law. But only Bedlam, and not Angel or Daring, may be cited for this infraction, since only the person who possesses or consumes an alcoholic beverage in violation of G.S. 20-138.1(a1) may be charged with this infraction.
What about Angel? The other type of open container offense defined in G.S. 20-138.7 is a more serious violation, a Class 3 misdemeanor for first-time offenders, and may be committed only by the driver of a motor vehicle. G.S. 20-138.7(a) prohibits driving a motor vehicle on a highway while there is an alcoholic beverage in the passenger area in other than the unopened manufacturer’s original container if the driver is consuming alcohol or alcohol remains in the driver’s body. Angel, who has been studying all day, presumably has no alcohol remaining in her body and she is not consuming alcohol. Thus, she has not violated G.S. 20-138.7(a).
There are a few more statutory oddities worth noting. “Motor vehicle” has a special definition under G.S. 20-138.7. In this context, the term “means only those types of motor vehicles which North Carolina law requires to be registered, whether the vehicle is registered in North Carolina or another jurisdiction.” G.S. 20-138.7(a3). So the offense can’t be committed in a golf cart–a device considered a motor vehicle in other contexts but which cannot be registered with DMV. See G.S. 20-54(8).
G.S. 20-138.7(b) provides that open container offenses are alcohol-related offenses subject to the implied-consent provisions of G.S. 20-16.2. Does this mean the officer may arrest Bedlam and take her to the police station for a breath test? I don’t think so. Infractions are non-criminal violations of the law, for which a person may not be arrested. See G.S. 14-3.1. I doubt the legislature intended to supersede the rule in G.S. 15A-1113(b), (c), which allows a law enforcement officer who believes a person has committed an infraction to detain a person for a reasonable period in order to issue and serve a citation and, in very limited circumstances, to take the person before judicial official to determine if a bond is necessary, by authorizing a longer and more intrusive detention of a person charged with violating G.S. 20-138.7(a1). Instead, I think an officer may require submission to a chemical analysis only for drivers charged with the misdemeanor offense.
In any event, it seems unlikely that drivers charged solely with violating G.S. 20-138.7(a) are hauled to the breath testing room very frequently, since G.S. 20-138.7(d) authorizes the administration of an alcohol screening test and reliance upon its results in court for the purpose of determining whether alcohol was present in the driver’s body.
The New York Times recently published this piece on Google cars that drive themselves. And we’re not just talking about steering a straight line down the interstate. One car even navigated the hairpin turns on San Francisco’s famously curvy Lombard Street.
The cars use navigation systems and software capable of sensing nearby objects and reacting to their presence. Google cars reportedly have driven 1,000 miles without human intervention and more than 140,000 miles with “only occasional human control.”
The Times notes that autonomous vehicles create “thorny legal issues” since the laws governing motor vehicles generally pin responsibility for their safe and lawful operation upon the driver–not the vehicle. Apparently the presence in the Google cars of a driver capable of overriding any error avoids any problem with California law.
The operation of an autonomous vehicle without a human driver apparently would violate North Carolina law as well. G.S. 20-163 prohibits a person driving or in charge of a motor vehicle from leaving it “stand[ing} unattended” on a public highway or public vehicular area without first stopping the engine, setting the brake, and, upon a grade, turning the front wheels to the curb or side of the highway. Violation of this provision is negligence per se. Watts v. Watts, 252 N.C. 352 (1960).
North Carolina law considers driving to be an exclusively human act, though not one that requires that a vehicle be in motion. The term driver is defined in G.S. 20-4.01(7) as being synonymous with the term “operator,” defined in G.S. 20.4.01(25). Cognates of both words (such as drive, driving, operate, operating) also share the same meaning. An operator is “[a] person in actual physical control of a vehicle which is in motion or which has the engine running.”
A defendant’s purpose for taking actual physical control of a car is not relevant to consideration of whether he was driving. State v. Fields, 77 N.C. App. 404 (1985). Thus, in the criminal prosecution of defendants for offenses of which driving is an element, there is no requirement that the State establish that the vehicle was in motion with the defendant behind the wheel or that the defendant cranked the car for purposes of driving it. Id. In State v. Fields, a law enforcement officer came upon a vehicle sitting in the right hand lane of the road. The vehicle was motionless and defendant was seated behind the wheel. The vehicle’s owner was seated on the passenger side. Both the defendant and the passenger testified at trial that the passenger had been driving and stopped the vehicle on the street so that they could use the bathroom. The defendant got back into the driver’s seat of the car and cranked it because he was cold. The court found that this constituted sufficient evidence of driving in the prosecution of defendant for the offense of driving while impaired.
Driving can be established by circumstantial as well as direct evidence. In State v. Dula, 77 N.C. App. 473 (1985), the court found sufficient evidence to justify the inference that defendant was driving where the driver of another car saw black tire marks on the highway, dust in the air, and a car, with its headlights on, lying on its top in a field near the highway. The driver of the other car stopped at the scene and found the defendant in the overturned car, the doors of which were closed and the windows rolled up. He did not see anyone else in the area. The investigating officer saw tire marks leading from the black marks on the highway across the highway shoulder and field to where the overturned car was. The officer could not open the car doors. Testimony from a witness for the defendant that the witness was driving the car and fled the scene did not render the State’s evidence insufficient.
Likewise, in State v. Riddle, 56 N.C. App. 701 (1982), the court found circumstantial evidence of driving sufficient to warrant submission of the case to the jury where the defendant was seen getting out of the car immediately after the collision and no one else was seen in or near the car. Defendant said that his friend had been driving and left the scene of the accident, running through the woods. A witness and law enforcement officers checked the woods and discovered no evidence to support the defendant’s claim.
Defendant claimed that the driver of the car left through the driver’s side door, but an investigating law enforcement officer was unable to open the door because of the damage it sustained during the collision. When the wrecker driver arrived, defendant pulled the keys to the car out of his pocket and handed them to the wrecker driver.
The court reached a different conclusion in State v. Ray, 54 N.C. App. 473 (1981), finding insufficient evidence to support the impaired driving charge where the only evidence that defendant was driving was that he was sitting “halfway [in] the front seat.” In Ray, an officer responded to an accident call and saw the defendant seated in a car that had hit two parked cars. There was no evidence that the car had been operated recently or evidence that the motor was running.
Solely for the prosecution of parking violations, it is presumed that a vehicle was parked and left upon a street or place by the person or entity in whose name the vehicle is registered. See G.S. 20-162.1.
The Times reports that autonomous cars are “years from mass production,” but when and if they do hit the marketplace, they’ll doubtless require reconsideration of North Carolina laws founded on the notion that vehicles end up where they do as a result of human direction.
Among the most recent batch of opinions issued by the Court of Appeals was State v. Tellez, in which the court upheld the defendant’s conviction of two counts of second-degree murder and one count of felonious hit and run arising from a fatal car crash. Here are the facts: Defendant went to a party in Coats, NC around 1 p.m. on March 4, 2007, where he drank three beers. Three hours later, defendant and his friends, Castro and Childers, left the party in Castro’s car. Defendant drove and, while he was driving, began to drink a fourth beer. As defendant approached an intersection with a state highway, he slowed, but did not stop. Indeed, defendant drove around a car that had stopped at the intersection and drove straight into the path of a truck driven by Dwayne Braswell and in which Braswell’s nine-year-old son, Jerry, was a passenger. After the collision, the truck rolled several times and caught on fire. Paramedics were unable to help Mr. Braswell or his son because of the fire. Their bodies burned beyond recognition. Defendant ran from the scene. Childers told the trooper who arrived on the scene that the defendant “was drunk and ran, got scared.” But Childers testified at trial that she did not know whether Tellez “was intoxicated” and “didn’t think he was.”
Tellez argued on appeal that the trial court erred in denying his motion to dismiss the second-degree murder charge because there was no evidence that he was driving while impaired. The court rejected this contention. Noting that second-degree murder is an unlawful killing with malice but without premeditation and deliberation, the court explained that there must be an intentional act sufficient to show malice. To prove malice in operating a motor vehicle, the State must prove that the defendant intended to drive in a reckless manner that reflected knowledge that injury or death would likely result, thus evidencing depravity of mind. Conduct other than impaired driving can arise to this level of recklessness.
The Tellez court concluded that the evidence of defendant’s (1) reckless driving, (2) consumption of alcohol before and during driving, (3) prior convictions for impaired driving and driving while license revoked, and (4) flight and elusive behavior after the collision constituted substantial evidence of malice based upon depravity of mind.
That the defendant’s reckless driving and his consumption of alcohol would be considered evidence of driving in such a way that reflects knowledge that injury or death would likely result-in other words, malice-seems rather obvious. This post is focused on the latter two categories of evidence, the defendant’s prior convictions and his post-crash conduct.
North Carolina’s appellate courts have consistently held that a defendant’s prior driving convictions are admissible to pursuant to Rule 404(b) to show malice in a second-degree murder prosecution based on the defendant’s driving. See, e.g., State v. Maready, 362 N.C. 614 (2008); State v. Goodman, 147 N.C. App. 57 (2002) (Greene, J., dissenting), rev’d, 357 N.C. 43 (2003) (per curium, adopting dissenting opinion); State v. Rich, 351 N.C. 386 (2000).
As most readers know, Rule 404(b) of the NC Rules of Evidence provides that evidence of other crimes, wrongs and acts by a defendant may not be admitted to prove that the defendant acted in conformity with that bad character in committing the instant offense. In other words, a prior impaired driving conviction may not be considered by the jury as evidence that, since the defendant previously drove while impaired, he did so on this occasion as well. Despite its provisions excluding the introduction of relevant evidence of other crimes, wrongs or acts by a defendant, Rule 404(b) otherwise is a rule of inclusion. Evidence of other bad acts and crimes, if relevant, may be introduced for other purposes, including establishing the defendant’s state of mind.
While 404(b) evidence must bear similarity and temporal proximity to the instant offense, courts generally have viewed a defendant’s entire record of traffic convictions to be relevant to whether the defendant exhibited malice by driving a manner that caused a fatal accident. In Tellez, the trial court admitted evidence that defendant had previously been convicted of driving while license revoked and impaired driving.
It is not entirely clear whether North Carolina’s appellate courts would sanction the admission of evidence of a prior impaired driving conviction as evidence of malice if the conduct giving rise to the murder charge did not involve driving after consuming alcohol or some other impairing substance. In State v. Lloyd, 187 N.C. App. 174 (2007), the defendant was charged with second-degree murder after he stole a van, fled from police, drove recklessly, and crashed into another car, killing both of its occupants. Lloyd was sober, but his driver’s license was revoked. The State introduced evidence of Lloyd’s prior refusal to submit to a breath test and his accompanying arrest and conviction of impaired driving. The trial court instructed the jury that this evidence “was received solely for the purpose of showing that the defendant had the knowledge that his license was suspended” on the date of the offense and, further, that driving with a suspended license suspension was evidence of malice. The court of appeals characterized the evidence that defendant drove knowing his license revoked as “fundamental” to proving malice and held that the danger of unfair prejudice was mitigated by the trial court’s limiting instruction. The appellate court failed to explain how driving with a revoked license evidences reckless-rather than simply unlawful-behavior.
Evidence of Tellez’s behavior after the collision likewise is admissible under Rule 404(b) as probative of his depravity of mind since post-offense conduct, like prior bad acts, can be relevant to establishing the defendant’s state of mind at the time of the offense. Cf. State v. Grice, 131 N.C. App. 48 (1998) (characterizing comments by trial court at sentencing that defendant’s “total lack of remorse” as evidenced by his failure to ask whether someone was hurt in the car he crashed into “implies . . . a lack of consciousness [and] total disregard for the laws of this State” as drawing a parallel between defendant’s lack of remorse and the malice necessary to support a second-degree murder conviction).
Tellez doesn’t change the landscape of the law applicable to murder prosecutions arising from vehicle crashes, though it does provide one more set of tragic facts held to establish malice. The last portion of the opinion explains that Childers’ statements to the trooper at the scene of the crash that Tellez “was drunk” were properly admitted into evidence, notwithstanding Childers’ testimony at trial that she did not think Tellez was intoxicated. I’ve waxed on too long already, so I won’t attempt to explain how the court concluded that these statements amounted to corroboration rather than inadmissible hearsay. (Plus, I can’t figure out what these statements corroborated.) Can any of our loyal readers explain this reasoning? Anyone? Anyone? Bueller?
Editor’s note: The News and Observer has a point/counterpoint today about the merits of the new law against texting while driving. Check it out here and here.
The New York Times reported recently that Transportation Secretary Ray LaHood announced plans for a “‘distracted driving summit'” to be held in September to address legal and policy changes to combat the dangers of texting and talking on cell phones while driving. The Times reported that the Transportation Secretary’s announcement was made on the heels of a proposal by several senators to withhold federal highway money from states that fail to ban texting while driving. This year, North Carolina joined the ranks of states (The Times reports there are 14 in all) that ban the practice.
New G.S. 20-137.4A makes it unlawful as of December 1, 2009, to operate a vehicle on a public street, highway, or public vehicular area while using a mobile telephone to manually enter multiple letters or text in the device as a means of communicating with another person. It is also unlawful to read email or text messages while driving. The ban does not apply if the vehicle is lawfully parked or stopped, or to law enforcement officers, fire department members, or ambulance drivers while they are performing official duties. Drivers are permitted to GPS systems and wireless communications devices used to transmit or receive data as part of a digital dispatch system along with voice operated technology. Texting while driving a school bus is a Class 2 misdemeanor, punishable by a fine of not less than $100. All other violations are infractions punishable by a fine of $100 and costs of court. No driver’s license or insurance points are assessed for a violation. Moreover, a violation of GS 20-137.4A is not negligence or contributory negligence per se. The General Assembly ordered the Joint Legislative Transportation Oversight Committee to identify and study the leading causes of driver distraction, the risks posed, and methods to manage those distractions and promote highway safety. The committee must report its findings and recommendations along with any proposed legislation to the General Assembly by April 15, 2010.
