I’m pleased to announce that the School of Government has just released a new book entitled Pulled Over: The Law of Traffic Stops and Offenses in North Carolina. Shea Denning, Christopher Tyner, and I are the authors. It’s an important topic given that North Carolina officers conduct more than a million traffic stops each year and that many criminal cases, small and large, begin with a motor vehicle stop. This post provides more information about the book. Continue reading
Tag Archives: motor vehicles
New Book on Traffic Stops and Offenses
May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions. Continue reading →
In some states, theft of an automobile is a felony regardless of the value of the vehicle. See, e.g., Fla. Stat. § 812.014. Not so in North Carolina. Motor vehicles don’t have any special status under our larceny statute, G.S. 14-72. Therefore, theft of an automobile is a misdemeanor unless the vehicle is worth more than $1,000, or the theft falls under one of the other felony provisions of G.S. 14-72(b).
In this post, I’ll summarize the appellate cases that consider whether there was sufficient evidence that a vehicle was worth more than $1,000.
No presumption that motor vehicles are worth more than $1,000. If the State presents no evidence of a vehicle’s value, that is insufficient to sustain a felony conviction. In other words, there’s no presumption that a motor vehicle is worth more than $1,000. State v. McRae, __ N.C. App. __, 752 S.E.2d 731 (2014) (reversing a conviction based on felony larceny of a vehicle because the State introduced no evidence of the vehicle’s value; the vehicle belonged to a high school student and the indictment alleged that it was worth $2500). Cf. In re Mecklenburg County, 191 N.C. App. 246 (2008) (vacating a juvenile adjudication based on an admission to felony larceny; while the juvenile acknowledged stealing a truck, the “prosecutor’s statement of facts does not contain any statement or evidence that the pickup truck was worth more than $1,000,” so there was no factual basis for the felony admission).
Evidence that an older vehicle is well-kept is not sufficient. In State v. Holland, 318 N.C. 602 (1986), the state supreme court found insufficient evidence of value where “the State offered no direct evidence of the [stolen] Cordoba’s value,” even though there was “evidence tending to show that the victim owned two automobiles and that the 1975 Chrysler Cordoba was his favorite one of which he took especially good care, always keeping it parked under a shed,” and “a picture of this automobile was exhibited to the jury for the purpose of establishing the location of the automobile when discovered after its theft.” Interesting aside: I checked Hemmings Motor News and a couple of other websites, and a 1975 Cordoba in good condition could be worth $10,000 today.
Evidence that a vehicle is shiny and new is sufficient. By contrast, in State v. Dobie, 2014 WL 3824257 (N.C. Ct. App. Aug. 5, 2014) (unpublished), the court of appeals ruled that there was sufficient evidence of felony larceny where photographs of the vehicle in question showed that it was a “late model BMW sedan that ha[d] no exterior defects.” The holding makes sense on the facts presented, but I wonder how far it extends. I have a previous-generation Toyota Camry that looks pretty good except for some scuffing on the trunk lid. Does that count? How about my wife’s minivan, which runs well but has several dents and is missing a hubcap?
The owner’s testimony regarding the vehicle’s value may be sufficient. The owner may testify to the value of a vehicle under State v. Huggins, 338 N.C. 494 (1994). But note State v. Haney, 28 N.C. App. 222 (1975), where the court made clear that value means fair market value, not the price at which the owner would be willing to sell the vehicle. The court suggested that testimony that owner would not sell a vehicle for less than $2000 was “[i]ncompetent,” though sufficient given that defendant did not object to it.
Evidence of the price the owner paid for the vehicle may be sufficient. Evidence of a recent sale above the threshold amount may be adequate. State v. Rascoe, 170 N.C. App. 198 (2005) (evidence of purchase price months or years before the theft may be sufficient evidence of value where there is no reason to believe that “extraordinarily rapid depreciation” had greatly reduced the vehicle’s value).
Blue book value may be sufficient. Finally, under State v. Dallas, 205 N.C. App. 216 (2010), the NADA Guide and similar references are admissible evidence on the value of a vehicle. I glanced at cases from other jurisdictions and it appears that other states generally agree. See, e.g., Walker v. Com., 704 S.E.2d 124 (Va. 2011) (rejecting Confrontation Clause argument because such guides are not testimonial); State v. Erickstad, 620 N.W.2d 136 (S.D. 2000) (collecting cases and ruling that such guides fall within the hearsay exception for market reports and commercial publications). This seems like a sure and simple course for the State in most cases.
On another topic, regular readers may have noticed that there was no post yesterday. I’m sorry. I was caught up in other matters and just didn’t get to it. We should be back on track now.
Bail Bondsmen Are Not Above the Law
Post bail and skip out on court in North Carolina and chances are that someone other than a law enforcement officer will come looking for you. Bail bondsmen in this state have expansive powers to recapture their principals. Bondsmen may use reasonable force to apprehend a principal—even before a bond is forfeited. See State v. Mathis, 349 N.C. 503 (1998). They may lawfully break and enter a principal’s residence to take custody of a person for whom they serve as a surety. Id. This includes the authority to overcome the resistance of a third party who impedes their efforts to apprehend a principal. Id. at 514. Nevertheless, the power of bondsmen, while broad, is limited in scope. Bondsmen may not forcibly enter into the home of a third party to recapture a principal unless the person with whom they contracted lives in the home. Id. And while bondsmen may apprehend suspects in a manner that approximates an arrest, they are not law enforcement officers and are not imbued with all of the powers accorded officers of the State. Id. Thus, bondsmen may not, for example, carry guns on school property, even in the process of chasing an armed and fleeing principal. State v. Haskins, 160 N.C. App. 349, 356 (2003).
The court of appeals in State v. McGee, ___ N.C. App. ___ (June 3, 2014), recognized another limitation on a surety’s right to apprehend a principal: Bail bondsmen are not exempt from the speed limitations in Chapter 20 when seeking to apprehend a principal.
Facts. Michael McGee, a bail bondsman, called 911 on the morning of August 31, 2010 to inform law enforcement officers that he was chasing a principal, George Mays, who had failed to appear in court. McGee requested assistance from law enforcement officers in apprehending Mays. McGee’s fiancée, Anecia Neal, was riding with McGee in the front passenger seat of his car while he pursued Mays. McGee drove at a high rate of speed – between 80 and 100 miles per hour—down a two-lane road with a 45 mile per hour speed limit. Mays passed another car in a no passing zone. McGee attempted the same maneuver, but lost control of his vehicle and went down an embankment. Neal died from injuries she sustained in the accident. McGee was indicted for involuntary manslaughter and misdemeanor death by vehicle.
Issues. The trial court instructed the jury that ““[b]ail bondsmen can make an arrest; however they may not violate the motor vehicle laws of North Carolina to do so.” (Slip op. at 4.) McGee objected to the instruction. He argued on appeal that bail bondsmen may violate the state’s motor vehicle laws when apprehending a principal; that the reasonableness of the means used by a bail bondsmen is a question of fact for the jury; and that the trial court lessened the State’s burden of proof by so instructing the jury.
Analysis. The court of appeals rejected those arguments. First, the court noted that the legislature enacted speed restrictions “‘for the protection of persons and property and in the interest of public safety, and the preservation of human life.’” (Slip op. at 6.) While G.S. 20-145 expressly exempts police vehicles from speed limitations when driven in pursuit of a suspect and with due regard for safety, no statutory provision similarly exempts bail bondsmen from such limitations when pursuing a principal. The court determined that, like any other citizen, bail bondsmen must follow the state’s motor vehicle laws—even when pursuing a principal who has failed to appear in court. The authority to use reasonable means to capture a principal does not create an exemption from the speed limit laws. The court further noted that a bondsman’s power to take a principal into custody arises from the contractual relationship between the principal and the surety. (Slip op. at 8-9). Bond agreements provide that the surety posts the bail and, in return, the principal agrees that the surety can recapture him or her at any time. Mathis, 349 N.C. at 509. By entering this contract, the principal voluntarily consents to the custody of the surety and, under common law, implicitly agrees that the surety or the surety’s agent may break and enter his home and use reasonable force to apprehend him. The principal may not, however, contract away the rights of third parties. Thus, the McGee court reasoned, just as a bail bondsman cannot enter the home of a third party (that is not the principal’s residence) without the third party’s consent, bondsmen pursuing principals on the state’s roadways cannot engage in conduct that endangers the lives and property of third parties. Third parties have the right to expect that others using public roads, including bail bondsmen, will follow the laws in Chapter 20.
Thus, the court concluded that the trial court’s instruction was proper. It clarified that a bondsman’s right to arrest a principal does not include the right to violate the state’s motor vehicle laws – a correct statement of the law. The instruction did not invade the province of the jury, which was left to determine whether the defendant violated G.S. 20-141(a) by driving at a greater speed than was reasonable and prudent given the circumstances.
School Bus Safety
School started back this week across the state, which means that many school buses are traveling the roadways. Buses in my neighborhood hit the pavement early—one drove by this morning shortly after 6 a.m.—and often still are completing their routes when commuters begin to drive home from work. The advent of a new school year is a good time to review the laws that prohibit motorists from passing stopped school buses and to discuss amendments to those provisions enacted by the General Assembly last session.
What is a school bus? School buses are easy to spot. They typically are painted yellow. G.S. 20-4.01(27)d4. The words “School Bus” are printed in large type on their front and rear. Id.; G.S. 20-217(b). They are equipped with alternately flashing red lights on the front and rear and a mechanical stop signal. They can be public, private or parochial vehicles.
When must drivers stop? The driver of a vehicle that approaches a school bus from any direction on the same street, highway, or public vehicular area must stop and remain stopped when (1) the bus is displaying its mechanical stop signal or flashing red lights and (2) is stopped for the purpose of allowing passengers to board or leave the bus. G.S. 20-217(a). The driver of the other vehicle may not move, pass, or attempt to pass the school bus until after (1) the mechanical stop signal has been withdrawn, (2) the flashing red stoplights have been turned off, and (3) the bus has started to move. Id.
What about divided roadways? An exception to the rule stated above applies to drivers traveling in the opposite direction from a school bus on a street that has been divided into two roadways that are separated by an intervening space (including a center lane for left turns if the roadway consists of at least four or more lanes) or by a physical barrier. Such a driver does not have to stop upon meeting and passing a school bus that has stopped in the roadway across the dividing space or physical barrier.
For their part, school bus drivers generally may not stop to allow passengers to board or leave the bus upon such a divided roadway if the passengers would be required to cross the roadway to reach their destination or to board the bus. G.S. 20-217(d). Passengers may, however, board or leave the bus at points on a divided roadway that they must cross if pedestrian and vehicle traffic is controlled by adequate stop and go traffic signals.
What’s the penalty? Passing a stopped school bus in violation of G.S. 20-217(a) is a Class 1 misdemeanor, which may not be disposed of by entry of a prayer for judgment continued. G.S. 20-217(e). Court appearance is mandatory for such charges; they are not the sort that may be paid and resolved by mail. Five driver’s license points are assigned to such a conviction if the driver was operating a noncommercial motor vehicle, eight if the person was driving a commercial motor vehicle. G.S. 20-16. Four insurance points apply, translating to an 80 percent increase in insurance rates.
If a driver willfully violates G.S. 20-217(a) and strikes any person, he is guilty of a Class I felony. If a driver willfully violates G.S. 20-217(a) and strikes any person, resulting in the death of that person, she is guilty of a Class H felony.
How are violators caught? Sometimes witnesses record the license plate of a motor vehicle and describe its driver. See, e.g., State v. Williams, 90 N.C. App. 120 (1988) (witness described car and driver and provided license plate number). Sometimes violations are recorded by cameras mounted on the school bus’s stop arm. G.S. 20-217(h) provides that “any photograph or video recording by a camera or video recording system shall, if consistent with the North Carolina Rules of Evidence, be admissible as evidence in any proceeding alleging a violation of [G.S.20-217(a)].” And, in the worst cases, when a child boarding a school bus is struck by a driver, the driver may stop. See, e.g., State v. Weston, 273 N.C. 275, 282, 159 S.E.2d 883, 887 (1968).
New legislation. S.L. 2013-293 (H 428) amended the penalty provisions of G.S. 20-217 and enacted new license revocation and registration hold provisions, effective for offenses committed on or after December 1, 2013.
- Mandatory Fines. The amendments require that a person convicted of a Class 1 misdemeanor for passing a stopped school bus pay a minimum fine of $500, a person convicted of a Class I felony pursuant to G.S. 20-217(g) pay a minimum fine of $1,250, and a person convicted of a Class H felony under this statute pay a minimum fine of $2,500. The act “encourages local boards of education to use the proceeds of any fines collected for violations of G.S. 20-217 to purchase automated camera and video recording systems to install on school buses to help detect and prosecutor violators.”
- License Revocation. New G.S. 20-217(g1) requires that DMV revoke for one year the driver’s license of a person convicted of a second misdemeanor violation under G.S. 20-217 within a three-year period. DMV must revoke for two years the driver’s license of a person convicted of a Class I felony under G.S. 20-217 and must revoke for three years the driver’s license of a person convicted of a Class H felony under G.S. 20-217. DMV must permanently revoke the driver’s license of any person convicted of a second felony under G.S. 20-217 and the driver’s license of any person convicted of a third misdemeanor for passing a stopped school bus. DMV may restore a license permanently revoked under G.S. 20-217 after two years (in the case of revocation for a third misdemeanor) or three years (in the case of revocation for a second felony).
- Commercial License Disqualification. New G.S. 20-17.4(o) provides that any person whose driver’s license is revoked under G.S. 20-217 is disqualified from driving a commercial motor vehicle for the period of the revocation.
- Limited Driving Privilege. A person whose license is revoked for a first felony conviction under G.S. 20-217 may apply to the sentencing court for a limited driving privilege after six months of revocation.
- Registration Hold. New G.S. 20-217(g2) and G.S. 20-54(11) prevent a person who fails to pay a fine or costs imposed pursuant to G.S. 20-217 from registering or renewing the registration for any motor vehicle he owns.
Public Safety. There were more than 1,300 misdemeanor charges for passing a stopped school bus in 2012. There were 3 felony charges statewide, two for striking a person and one for causing death. One doesn’t have to look far for a compelling reason to comply with G.S. 20-217. North Carolina’s school children are worth the wait.
Road Trips Raise the Darndest Questions
I was on vacation with my family last week, and there’s nothing quite like a drive across our fair state to spur interest in motor vehicle laws. Here are a few of the questions that my clan raised along the way.
On Interstate 40
1. When will our six-year-old be able to ride without a booster seat?
When she is 8 years old or weighs 80 pounds, whichever comes first. G.S. 20-137.1(a1).
2. Our 11-year-old insists that he can ride in the front passenger seat (and that “all [his] friends do”). Is this lawful?
Yes, this is lawful, though the rear seat is the safest place for children of any age to ride. See http://www.buckleupnc.org/using_airbags.cfm. If a vehicle has an active passenger-side front air bag and a rear seat, a child less than five years old and weighing less than 40 pounds must be secured in a rear seat, unless the child restraint system is designed for used with air bags. See G.S. 20-137.1(a1).
3. Can my license really be revoked for driving more than 75 miles per hour?
It depends which stretch of I-40 you’re driving on. DMV is authorized to suspend a person’s license if the person is convicted of speeding more than 75 miles per hour on a highway where the maximum speed is less than 70 miles per hour. See G.S. 20-16(a)(10). There are stretches of I-40 where the speed limit is 70 mph.
On Highway 24 (a two-lane road with a turn lane in the middle)
4. Do I have to pull over in my eastbound lane for a fire truck in the westbound lane with its siren activated?
Yes, you must immediately drive as near as possible to the right hand edge of the road, stop, and remain there until the fire truck has passed. See G.S. 20-157(a). This rule does not apply when an emergency vehicle is travelling in the opposite direction on a four-lane limited access highway with a median divider (such as Interstate 40).
5. Can adults ride on a highway in the open bed of a pick-up truck? What about kids?
People 16 years old and older may ride in the open bed of pick-up truck on the highway. Children under 16 may not ride in the open bed of a pick-up truck unless (1) an adult is present in the back of the truck and is supervising the child, (2) the child is restrained by a seat belt, (3) there is an emergency, or (4) the truck is in a parade or being used in a farming operation. See G.S. 20-135.2B.
6. May two motorcycles be driven side-by-side in a single lane?
Yes. See G.S. 20-146.1(b). Note that, subject to this exception for two motorcycles ridden abreast, no motor vehicle may deprive a motorcycle of the full use of a single lane. See G.S. 20-146.1.
7. If our niece and nephew join us, we won’t have enough seats in the car for them. Can they lawfully sit behind the last row of passenger seats for a short trip to the ice cream store?
Yes, though this obviously is not the safest practice. The provisions of G.S. 20-137.1 requiring all passengers less than 16 years old be properly secured in a child passenger restraint system or seat belt do not apply if all of the seats that have child passenger restraint systems or seat belts are occupied. See G.S. 20-137.1(b)(ii).
On Ocean Drive (a public, unmarked road in the Town of Emerald Isle, with a speed limit of 35 mph or less)
8. I just saw someone driving a golf cart down the road. Is that legal?
Yes. A city may (by ordinance) allow golf carts to be driven on public roads within the city on which the speed limit is 35 miles per hour or less. G.S. 160A-300.6. No person under 16 may be permitted to drive a golf cart. G.S. 160A-300.6(b). Emerald Isle’s ordinance permits golf carts registered and permitted with the town to be driven on its public streets (subject to some exceptions) by persons who are at least 18 years old and who have a driver’s license.
9. Are our children required to wear their bike helmets when riding on the road or public bicycle path?
Yes. G.S. 20-171.9 makes it unlawful for any parent or guardian of a person below the age of 16 to knowingly permit that person to ride a bicycle in such areas without a helmet.
If these questions whet your appetite for more motor vehicle trivia, take DMV’s “Driver Knowledge Sample Test,” available here.
Court Costs and Traffic Citations
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.
Larceny of a Motor Vehicle
There’s a popular video game — or really, series of video games — called Grand Theft Auto. And many states have a crime called grand theft auto, or have some other theft offense that is specific to motor vehicles. In fact, according to this handy chart from the National Conference of State Legislatures, it appears that at least half of all states have a vehicle theft crime. When I told a group of magistrates the other day that North Carolina doesn’t have such an offense, they gave me a collective look that said “we’re too polite to contradict you during class, but you’re hopelessly dim.” So I did a little poking around.
First of all, we really don’t have a separate vehicle theft offense. We have an unauthorized use of a vehicle offense, G.S. 14-72.2, and a crime for stealing gasoline, G.S. 14-72.5, and an offense covering the theft of certain motor vehicle parts, G.S. 14-72.8, and even a special offense for receiving or transferring a stolen vehicle, G.S. 20-106. But there is no distinct statutory offense for stealing a car. Motor vehicle thefts are prosecuted under the general larceny statute, G.S. 14-72, meaning that such a theft is generally a misdemeanor when the vehicle is worth less than $1000, and is a felony when the vehicle is worth more than $1000. [Update: a thoughtful reader pointed out that G.S. 20-106 also covers possession of a stolen vehicle, and it’s a felony regardless of value, meaning that a person who steals a car worth less than $1000 can virtually always be charged with a felony offense, even if not felony larceny.]
Nonetheless, it seems to be very common to speak of “larceny of a motor vehicle” as if it were a separate offense. Our appellate courts have used that description many, many times. Just in published cases in the last year, for example, there’s State v. Kidwell, __ N.C. App. __, 720 S.E.2d 795 (2012) (“[D]efendant was indicted for larceny of a motor vehicle.”); State v. Teague, __ N.C. App. __, 715 S.E.2d 919 (2011) (stating that the defendant was sentenced to “15 to 18 months imprisonment for the larceny of a motor vehicle conviction”); State v. Flaugher, __ N.C. App. __, 713 S.E.2d 576 (2011) (“[D]efendant was indicted for . . . larceny of a motor vehicle.”); and State v. Womack, __ N.C. App. __, 712 S.E.2d 193 (2011) (“At the habitual felon sentencing hearing, the State introduced certified copies of documents establishing Defendant’s convictions for larceny of a motor vehicle.”). I suspect that practicing lawyers, officers, and others also talk about larceny of a motor vehicle as if it were a distinct offense.
As far as I can tell, the reason for that is that the computer system used by magistrates to create charging documents in criminal cases has a separate form or option for larceny of a motor vehicle. So if an officer wants to arrest someone for stealing a TV, the magistrate will generate an arrest warrant that is simply captioned “larceny,” but if an officer wants to arrest someone for stealing a car, the magistrate will generate an arrest warrant that is captioned “larceny of a motor vehicle.” Even though both warrants will refer to G.S. 14-72, this practice creates the perception that there is a separate crime called larceny of a motor vehicle. A quick glance at recent AOC data suggests that felony larceny of a motor vehicle is charged a few thousand times per year, while misdemeanor larceny of a motor vehicle is charged a few hundred times per year. Why the computer system creates this artificial distinction, I don’t know. One thoughtful person suggested that it might facilitate the collection of data on stolen vehicles, which might be of interest to the DMV and others.
In any event, I don’t think there’s any harm to the practice. I just thought it was interesting and figured that others might, too.
Qualifying Predicate Traffic Violations for Purposes of Misdemeanor Death by Vehicle
Misdemeanor death by vehicle is defined in G.S. 20-141.4(a2) as (1) unintentionally causing the death of another person (2) while violating a State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic—other than impaired driving under G.S. 20-138.1—where (3) commission of the offense is the proximate cause of the death. (A defendant who drives while impaired and unintentionally, but proximately, causes the death of another commits the offense of felony death by vehicle in violation of G.S. 20-141.4(a1).) As I explained here, for offenses committed on or after December 1, 2011, misdemeanor death by vehicle is an implied consent offense, rendering it subject to implied consent testing procedures.
G.S. 20-141.4(a2) broadly defines the types of traffic violations that can satisfy the second element set forth above. I wonder, however, whether violations of traffic laws that do not involve or affect the method in which a defendant operates a vehicle can satisfy the second prong of the statute or, even if they do, can ever properly be considered the proximate cause of a death resulting from the defendant’s driving.
Consider, for example, a defendant who drives a motor vehicle on a public highway while her license is revoked in violation of G.S. 20-28(a). A deer darts in front of the defendant’s car. The defendant, who is driving the speed limit, swerves to avoid colliding with the deer. As she does so, she veers off the roadway and loses control of the car, colliding with a tree. A passenger riding in the defendant’s car is killed on impact. Has the defendant committed the offense of misdemeanor death by vehicle?
The defendant, while driving, unintentionally caused the death of another. At the time she drove, she was violating a state law prohibiting her from driving while her license was revoked. But for the defendant’s driving, her passenger would not have been killed. And let’s assume that 100 yards before the deer, the defendant passed a road sign indicating that there were deer in the area, rendering foreseeable the presence of deer in the roadway. Notwithstanding all of these factors, I’m not sure that the defendant has committed the offense of misdemeanor death by vehicle.
G.S. 20-141.4(a2)(3) requires that commission of the traffic offense (as opposed to mere operation of the vehicle) proximately cause another’s death. Though there are no North Carolina appellate court decisions addressing this issue, it appears that for driving while license revoked to serve as predicate offense for misdemeanor death by vehicle, the revocation element of driving while license revoked must, like the driving element, cause the death. Cf. People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774 (2005) (holding that legislature intended in enacting statute criminalizing driving while impaired and “by the operation of that motor vehicle causing the death of another person” that the defendant’s operation of the motor vehicle—not the defendant’s intoxicated manner of driving—cause the victim’s death).
Confronted with this issue several years ago, the Ohio Court of Appeals found it “difficult to conceive of a situation in which driving while under suspension could properly be the underlying crime in an involuntary manslaughter charge.” State v. Jodrey, 1985 WL 6740 (Ohio Ct. App. Apr. 10, 1985) (unpublished op.). The court explained that driver’s licenses are revoked for numerous traffic offenses of varying degrees of seriousness and for varying periods of time and that when the revocation ends, the driver generally is authorized to resume driving without any testing. Thus, the court reasoned: “It is difficult to imagine any real difference between one’s vehicle operation skills while under suspension and immediately after the suspension is terminated. We cannot find that the driving under suspension is the proximate cause of a death that occurs when a person drives while under suspension, as reprehensible as that activity certainly is.” Id. at *2. In a more recent published opinion the Ohio Court of Appeals relied upon Jodrey in holding that an involuntary manslaughter conviction could not be predicated upon the misdemeanor offense of driving while under suspension since “the act of driving under suspension is not relevant to the quality of the driving, and therefore, it is not relevant to causation.” State v. DeMastry, 952 N.E.2d 1151, 1157 (Ohio App. 2011). The Ohio courts’ analysis makes sense to me.
The view that driving with a revoked license is not relevant to causation is, however, a bit hard to reconcile with the North Carolina Court of Appeals’ consideration of prior convictions for driving while license revoked as well as commission of the act itself as among the factors that can establish malice in impaired driving cases that result in death, as discussed here and here.
Perhaps the notion that driving while license revoked cannot serve as a predicate offense for misdemeanor death by vehicle is so well-established that the issue never arises. Perhaps not. For enlightenment on that front, I turn to you, knowledgeable readers.
We’ll start with a pop quiz:
A police officer sees that the right brake light of a vehicle fails to illuminate when the driver applies brakes while driving down a street in North Carolina. The left brake light works. Does the officer’s observation of the malfunctioning right brake light provide reasonable suspicion that a violation of the state’s traffic laws has occurred, thus justifying a stop of the vehicle?
- Yes. A stop of the vehicle based on this observation is constitutional.
- No. A stop of the vehicle based on this observation is unconstitutional.
So as not to spoil the surprise, the answer appears after a page break. First, some background.
G.S. 20-129(g) sets forth the requirements for brake lights—termed “stop lamps” under the statute—on vehicles operated on North Carolina roads. Any motor vehicle, motorcycle, or motor-driven cycle manufactured after December 31, 1955 that is operated on street or highway in North Carolina must be “equipped with a stop lamp on the rear of the vehicle.” The stop lamp must display a red or amber light visible from at least 100 feet to the rear in normal sunlight. It may be incorporated into a unit with one or more other rear lamps.
Other provisions of G.S. 20-129 set forth the requirements for lighted “rear lamps” for vehicles. G.S. 20-129(d) requires that every motor vehicle, and every trailer or semitrailer attached to a motor vehicle and every vehicle drawn at the end of a combination of vehicles must “have all originally equipped rear lamps or the equivalent in good working order, which lamps shall exhibit a red light plainly visible under normal atmospheric conditions from a distance of 500 feet to the rear of such vehicle.”
So, every motor vehicle must have one working brake light pursuant to G.S. 20-129(g). And all of a vehicle’s “rear lamps” must be in good working order pursuant to G.S. 20-129(d). Does this mean that if a vehicle is equipped with more than one brake light, all of them must work? Find out after the jump.