How many charges can be placed on a single charging document, such as a citation, an arrest warrant, or an indictment? Old hands use the rule of thumb, no more than two charges per citation, no more than three charges in any other pleading. But where does that rule come from? And is it even correct? Continue reading
Tag Archives: infractions
S 182 is on the Governor’s desk. It is entitled in part “An Act to Eliminate Appeals for Infractions.” The bill also does some other things, but the focus of this post is on the potentially significant change in the way that infractions are processed.
Current law. Under current G.S. 15A-1115, “[a] person who denies responsibility and is found responsible for an infraction in the district court, within 10 days of the hearing, may appeal the decision to the criminal division of the superior court for a hearing de novo.” The trial de novo is a jury trial unless the defendant agrees to a bench trial, and a finding of responsibility may be appealed to the appellate division.
Changes under the bill. S 182 would amend G.S. 15A-1115 to remove virtually all references to appeals of infractions. Because “[a] defendant’s right to appeal a conviction is purely statutory,” State v. Santos, 210 N.C. App. 448 (2011), this appears to accomplish the intended goal of extinguishing the right to appeal infractions. (Infractions that are originally disposed of in superior court, such as infractions that are lesser included offenses of crimes within the superior court’s jurisdiction, may still be appealed to the appellate division.)
Significance of the changes. According to data published here by the Administrative Office of the Courts, there are approximately 600,000 infraction cases each year. The data don’t reveal how many are appealed to superior court, so I would be interested in readers’ perspectives on the practical significance of the change. I imagine that one of the purposes of the bill is to streamline procedures and save money, so the frequency of appeals is an important matter. The bill doesn’t have a fiscal note or any other analysis that I could find that addresses that issue.
Other states. Although there is no federal constitutional jury trial right for “petty offenses,” Baldwin v. New York, 399 U.S. 66 (1970), some state constitutions guarantee the right to a jury trial for infractions. See, e.g., Cunningham v. State, 835 N.E.2d 1075 (Ind. Ct. App. 2005); Riemers v. Elsinger, 781 N.W.2d 632 (N.D. 2010) (certain infractions). Other states provide jury trials as a matter of statute, as North Carolina historically has done, while others do not provide jury trials for infractions. See, e.g., Cal. Penal Code § 19.6 (“A person charged with an infraction shall not be entitled to a trial by jury.”); Alaska Stat. § 28.90.010 (“[N]or does a person cited with an infraction have a right to trial by jury.”).
The legislature has agreed on a budget, and it contains some provisions that will impact misdemeanor sentencing and the appointment of counsel — potentially in tens of thousands of cases each year.
Status of the budget. The current budget bill is S 402. It is available here. The accompanying “money report,” which provides narrative explanations of some of the provisions of the budget, is available here. Republican leaders in both chambers have endorsed the bill. The General Assembly is expected to approve it in the next two days, and Governor McCrory is expected to sign it.
Change to Structured Sentencing grid. Section 18B.13.(a) of the budget changes the misdemeanor Structured Sentencing grid as follows, effective for offenses committed on or after December 1, 2013:
This is the first change to the misdemeanor grid since 1995.
Fine only for many Class 3 misdemeanors. The same section states that “[u]nless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine.” Fines for Class 3 misdemeanors generally may not exceed $200. G.S. 15A-1340.23(b).
One question about this provision is whether it applies to a defendant who has three or fewer prior convictions that may be counted separately for Prior Conviction Level purposes, but who has four or more total prior convictions. (For example, a defendant who incurred several convictions in a single week or session of court. See generally G.S. 15A-1340.21(d).) The new fine-only provision appears in the General Statutes amidst the discussion of the Prior Conviction Level determination, so maybe so. But it does not expressly refer to or incorporate the Prior Conviction Level rules, so maybe not.
Reclassification of offenses. In addition to changing the punishments for Class 3 misdemeanors, the budget also creates more of them. Section 18B.14 reclassifies a number of misdemeanors – most currently Class 2 – as Class 3 offenses. The new Class 3 misdemeanors include:
- Obtaining property by worthless check, G.S. 14-106
- Simple worthless check, G.S. 14-107
- Failure to return hired property, G.S. 14-167
- Conversion by bailee, G.S. 14-168.1
- Failure to return rental property with purchase option, G.S. 14-168.4
- DWLR, G.S. 20-28 (unless revoked for DWI, then still Class 1)
- Certain motor vehicle misdemeanors that were Class 2 under G.S. 20-35, including:
- Most NOLs, G.S. 20-7
- Failure to tell DMV of address change by driver, G.S. 20-7.1
- Allowing vehicle to be driven by unlicensed person, G.S. 20-34
- Certain motor vehicle misdemeanors that were Class 2 under 20-176, including:
- Failure to carry registration card in vehicle, G.S. 20-57(c)
- Failure to sign registration card, G.S. 20-57(c)
- Failure to tell DMV of address change by vehicle, G.S. 20-67
- Certain license plate/registration violations, G.S. 20-111
- Window tinting violations, G.S. 20-127(d)
- Misdemeanor speeding, G.S. 20-141(j1)
- No insurance, G.S. 20-313(a)
- Repeat fishing without a license, G.S. 113-135(a) (referring to 113-174.1 and -270.1B)
Also, section 18B.15 of the budget reclassifies a number of boating safety offenses from Class 3 misdemeanors to infractions.
Ineligibility for appointed of counsel. It seems that one goal of these provisions was to save money on appointed counsel. The money report states that IDS’s budget will be reduced by $2,000,000 annually because the budget “[r]eclassifies low-level misdemeanors that rarely result in incarceration as Class 3 misdemeanors or infractions and modifies the sentencing structure for Class 3 misdemeanors so that the first three [editor’s note: probably should read “four”] charges are fineable offenses. With no possibility of incarceration, these offenses do not require legal counsel.”
In other words, the changes made by the budget will provide that a defendant charged only with a Class 3 misdemeanor, and who has no more than three prior convictions, will be facing a potential sentence of a fine of $200 or less. Constitutionally, an indigent defendant is entitled to appointed counsel when facing incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972), or even a suspended sentence, Alabama v. Shelton, 535 U.S. 654 (2002), but not a fine alone, Scott v. Illinois, 440 U.S. 367 (1979). Nor does a defendant facing a small fine have a right to counsel under the North Carolina statute governing appointment of counsel. It extends only to cases in which “imprisonment, or a fine of five hundred dollars . . . or more, is likely to be adjudged.” G.S. 7A-451(a)(1).
Note that if a defendant is sentenced to a fine but does not pay it, “the court, upon the motion of the prosecutor or upon its own motion, may require the defendant to appear and show cause” for his failure to pay, and if he cannot, may imprison the defendant for up to 30 days. G.S. 15A-1364. I don’t know how common these show cause proceedings are, but a defendant would appear to be entitled to counsel at any such hearing.
Administering the new provisions. It will be interesting to see how these changes work in practice. For example:
- Who will be responsible for determining how many prior convictions the defendant has? The prosecutor? The clerk?
- How thoroughly will the responsible party research the defendant’s prior record? Will an ACIS check of the county in which the charges are pending be the norm? A statewide ACIS check? Will CJLEADS or other systems be used for this purpose?
- Will judges err on the side of appointing counsel in order to protect defendants’ rights, or to preserve the possibility of a sentence other than a fine? Will that remove some of the anticipated cost savings?
As always, I’m interested in readers’ thoughts about the upcoming changes in the law. Given the number of cases affected, the changes appear to be quite significant.
Court costs support many different programs and purposes. The principal statute concerning court costs in criminal cases is G.S. 7A-304. (Under G.S. 15A-1118, these costs also apply to infraction cases.) G.S. 7A-304 establishes various court costs for the support of “courtroom(s) and related judicial facilities,” “courthouse phone systems,” “retirement and insurance benefits [for] . . . law-enforcement officers,” “operations of the Criminal Justice [and Sheriffs’]” training and standards commissions, “pretrial release services,” general support of the court system, and so on.
The state’s budget has been very tight in recent years, and the General Assembly has repeatedly increased existing court costs and created new ones. This AOC document summarizes current court costs. I’d like to focus on the costs associated with traffic infractions, for reasons that will become clear in a moment. Those costs currently total $188 for most cases. (They’re similar for other district court matters, and considerably higher for cases that move to superior court.) To put this in historical perspective, on July 1, 2011, motor vehicle infractions carried costs of $170. As of October 1, 2010, costs were $141. As of September 1, 2009, they were $130. As of July 20, 2008, they were $121. A year earlier, they were $120.
Of course, the true cost to a typical motorist of being cited for an infraction is not limited to court costs. The driver may also pay a lawyer, may miss time from work to attend court, may pay a fine, and may face higher insurance costs.
I heard recently that the number of traffic cases filed has decreased, which has been difficult for some of the organizations supported by criminal court costs. The chart below, based on AOC data, confirms the decline in infraction cases filed. (The vast majority of infraction cases involve motor vehicle offenses.)
One possible explanation for the decline is that some officers are reluctant to issue citations knowing that court costs are so high. In other words, some officers may be issuing more warnings and fewer citations based on a feeling that the cost of a citation has gotten out of proportion to the seriousness of a typical moving violation. There is, in fact, a temporal correlation between the run-up in court costs and the decline in infraction cases. However, correlation does not prove causation, and there are other possible explanations.
Drivers could be committing fewer offenses, either because they are driving less or because they are driving more carefully. I doubt that this is the case, however. Traffic volume has been about the same since 2009, according to the United States Department of Transportation, so people are not driving less. I suppose that it is possible that people are driving more carefully, but I haven’t noticed that in my time on the roads.
Officers could be detecting fewer offenses, perhaps because law enforcement agencies, faced with limited budgets, are doing less traffic enforcement. This strikes me as a more plausible explanation, supported somewhat by the fact that criminal motor vehicle case filings are also down, from a bit over 1.1 million in FY2010-11 to a bit under 1 million in FY2011-12. I doubt that many officers would choose to forego a criminal traffic violation out of concern for court costs, since criminal violations are typically more serious than infractions. The decline in filings of this type therefore suggests that officers may simply be detecting fewer violations.
Officers could be writing fewer citations for some other reason besides higher costs. For example, if the paperwork associated with writing a citation had recently become much more cumbersome, officers might be writing fewer citations to avoid the drudgery, or because so many hours were spent pushing paper and not enforcing the law. I’m not aware of any change of that nature, however.
Readers, what do you make of this data? Are there explanations that I’m missing? Officers, has the rise in court costs made you more hesitant to issue a citation?
As a final note, the data presented above don’t reach the separate question of whether judges are waiving costs more often as they have risen. That’s also an interesting question, but it will have to wait for a future post.
In 1985, the General Assembly reclassified certain minor traffic violations as a new type of non-criminal violation, termed an infraction. S.L. 1985-764. Though the legislation provided that infractions were to be processed in much the same manner as misdemeanor criminal charges (they were to be calendared and prosecuted by the district attorney, proved beyond a reasonable doubt, and persons found responsible for infractions in district court were afforded the right to a de novo jury trial in superior court), their non-criminal nature distinguished them from criminal offenses in a few critical ways. A law enforcement officer could not arrest a person for an infraction. A court could not issue an order for arrest if a person served with a citation for an infraction failed to appear in court. Infractions were punishable by a fine and costs only; no active or probationary sentence could be imposed.
Because persons charged with infractions could not be arrested, and persons found responsible for infractions could not be placed on probation or ordered to jail, the legislature recognized the need for other measures commensurate with the petty nature of such offenses to ensure that persons charged with infractions appeared in court and that those found responsible complied with court-ordered sanctions. See Report of the Courts Commission to the North Carolina General Assembly 15, 16 (1985). Appearances for infractions and compliance with court-ordered sanctions were thus tied to a person’s ability to remain licensed to drive. Failure to appear in court or comply with sanctions triggered an administrative license revocation. As the Courts Commission pointed out, the new “revocation procedure basically treats residents the same for in-state violations as they are treated when they are ticketed outside the state.” Id.; see also G.S. 20-4.20(b) (requiring DMV to suspend a person’s North Carolina driver’s license when the licensing authority of a reciprocating state reports that the person has failed to comply with a citation issued in that state). Today, the administrative license revocation provisions enacted in 1985 are codified, as amended, at G.S. 20-24.1 and G.S. 20-24.2. Here is what they currently provide:
If a person charged with a motor vehicle offense (be it a felony, misdemeanor or infraction) fails to appear on his or her court date and does not appear or “pay off” a citation for a waivable offense within 20 days thereafter, the clerk of court must report this failure to appear to DMV. G.S. 20-24.2. (The failure to appear also triggers imposition of a $200 court cost pursuant to G.S. 7A-304(a)(6).) The clerk must likewise report the failure of a person “charged with a motor vehicle offense” to pay a fine, penalty or costs within 20 days of the date specified in the court’s judgment. G.S. 20-24.2. Though this provision does not so specify, presumably it applies only when the conviction or adjudication of responsibility—in addition to the charge—is for a Chapter 20 motor vehicle offense. (A related provision of G.S. 7A-304(a)(6)—not limited to motor vehicle offenses—imposes court costs of $50 upon a defendant who fails to pay a fine, penalty, or costs within 20 days of the date specified in the court’s judgment.)
When it receives notice from the clerk pursuant to G.S. 20-24.2, DMV must mail or personally deliver to the person an order revoking his or her driver’s license, effective on the sixtieth day after the order is mailed or delivered. G.S. 20-24.1(b). If the person resolves the matter before the effective date of the revocation, the revocation never becomes effective and any entries on the person’s driving record related to the revocation are deleted. To resolve the matter, the person must do one of four things, depending upon the circumstances giving rise to the court’s report to DMV: (1) dispose of the charge in the trial division in which he or she failed to appear when the case was last called for trial or hearing; (2) demonstrate to the court that he or she is not the person charged with the offense; (3) pay the penalty, fine, or costs ordered by the court; or (4) demonstrate that his or her failure to pay the penalty, fine, or costs was not willful and that he or she is making a good faith effort to pay or that the penalty, fine or costs should be remitted.
Once the person has resolved the matter in court, the court so notifies DMV. G.S. 20-24.2. The clerk must provide the person upon request with a copy of the notice sent to DMV. If the person resolves the matter before the effective date of the revocation, the notice must indicate that the person is eligible to drive if he or she is otherwise validly licensed. If the revocation order becomes effective before the charge is resolved, the person’s license remains revoked until he or she resolves the matter by completing the necessary act of the four listed above and pays a $50 license restoration fee. G.S. 20-24.2.
If a clerk sends an order to DMV “through clerical mistake or other inadvertence,” the clerk’s office that sent the report of noncompliance must withdraw the report and send notice to DMV, which corrects its records. G.S. 20-24.2(b). When this occurs, the person is able to have his or her driver’s license reinstated without paying the restoration fee. In contrast, if the failure to appear is stricken but no notice is sent to DMV withdrawing the G.S. 20-24.2 report, the person must pay the $50 restoration fee to regain his or her driver’s license. A related provision in G.S. 7A-304(a)(6) requires the court to waive the $200 fee for failing to appear if the person demonstrates that he or she failed to appear because of an error or omission of a judicial official, a prosecutor or a law enforcement officer. (Courts also have discretionary authority to waive such costs upon upon a written finding of just cause. See G.S. 7A-304(a).)
I’d be curious to hear from readers who litigate motor vehicle charges as to whether both types of relief (withdrawal of the report and waiver of the $200 fee) typically are granted simultaneously or whether courts frequently determine that relief under one provision, but not the other, is warranted.
The Ohio Supreme Court recently ruled that cell phones generally cannot be searched without a warrant incident to arrest. That court’s decision is here. The law in North Carolina appears to be otherwise, as I’ve noted here and here. But reading the Ohio decision reminded me of a topic some colleagues and I were discussing recently: can an officer who has stopped a driver for a traffic infraction, and who suspects that the driver was texting while driving, search the driver’s cell phone for evidence — such as a time-stamped text message from just before the stop?
The backdrop, as most readers probably know, is that effective December 1, 2009, new G.S. 20-137.4A makes it illegal to read or compose text messages while driving. It’s a misdemeanor for school bus drivers, but for the rest of us, penalties are slight. It is “an infraction . . . punishable by a fine of one hundred dollars . . . and the costs of court. No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section,” and a violation isn’t negligence per se.
If texting while driving were a crime, and if the officer had probable cause to believe that the driver had committed it, the officer almost certainly could search the cell phone for evidence: the vehicle exception to the warrant requirement would probably apply, and the officer might have an exigent circumstances justification to boot, because any delay in searching the phone might result in the critical evidence being crowded out by newer text messages. Finally, in many cases, the officer could probably choose to arrest the driver, and could search the phone incident to the arrest. G.S. 15A-401(b)(1) (officers may arrest for any criminal offense committed in their presence).
Given that texting while driving is an infraction, though, how much investigative authority do officers have? I couldn’t find much law on this issue, particularly in North Carolina, so I don’t have a definitive answer. But I do have some food for thought:
- An officer’s authority to investigate an infraction is likely less than the officer’s authority to investigate a criminal offense. For example, G.S. 15A-242 appears to authorize the issuance of search warrants in connection with any criminal offense, but not infractions. And of course, officers may not arrest for infractions.
- In fact, one could read G.S. 15A-1113(b) to mean that an officer must simply “cite and release” for an infraction, i.e., that no additional investigation is permitted. There are out-of-state cases that provide some support for that idea. See, e.g., Washington v. Duncan, 43 P.3d 513 (Wash. 2002) (declining to permit investigatory stops based on suspicion of a civil infraction); Minnesota v. Holmes, 569 N.W.2d 181 (Minn. 1997) (parking violations insufficient to warrant investigatory search).
- The North Carolina case that’s closest to point, though, suggests that officers do have some investigative authority in connection with infractions. In State v. Parker, 183 N.C. App. 1 (2007), the court of appeals stated, “When a law enforcement officer stops a motorist based on probable cause to believe the motorist has committed a traffic infraction, the detention may last only as long as necessary to effectuate the purpose of investigating that infraction.
The question is exactly how far that authority goes, and as I’ve already confessed, I don’t have a clear answer. I do know that to sustain a search like the one under consideration, the state would need to show (1) that such a search is consistent with North Carolina’s statutory scheme, and (2) that it is reasonable under the Fourth Amendment. Anyone have any relevant authorities to share on either issue, beyond the ones discussed above? Any opinions about the reasonableness of such a search?