Qualifying Predicate Traffic Violations for Purposes of Misdemeanor Death by Vehicle

Tag Archives: traffic offenses

Qualifying Predicate Traffic Violations for Purposes of Misdemeanor Death by Vehicle

Posted on January 26, 2012 by Shea Denning

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 At the time she drove, she was violating a state law prohibiting her from driving while her license was revoked.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.

Category: Crimes and Elements, Motor Vehicles, Uncategorized | Tags: death by vehicle, motor vehicles, traffic offenses

Local Government Authority to Regulate Traffic

Posted on September 13, 2010 by Shea Denning

[Editor’s note: This post originally appeared here, on the School of Government’s local government blog. For an update on local government authority to regulate cell phone use by drivers, see this post.]

Questions frequently arise regarding whether cities and counties may lawfully adopt ordinances regulating traffic. For instance, may a city or county allow the operation of golf carts on streets within its boundaries? May a city adopt an ordinance defining speeding as violation of city code, punishable by a fine? May a city prohibit the use of mobile telephones by drivers within its jurisdiction?

The answer to these questions hinges upon a two-part inquiry. First, is the local government authorized to regulate in this area? Second, is the proposed ordinance consistent with state and federal law?

The general ordinance-making powers of cities and counties are defined in G.S. 160A-174 and G.S. 153A-121. Cities and counties may adopt ordinances regulating acts “detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the [city or county].” G.S. 153A-121; 160A-174.

G.S. 160A-296 provides that cities have general authority and control over (which includes the power to regulate the use of) the public streets, sidewalks, alleys, and bridges within their jurisdictions, except to the extent that authority and control is vested in the Board of Transportation. Several additional provisions in Chapter 160A expressly permit local regulation of traffic. See, e.g., G.S. 160A-300 (permitting cities to regulate pedestrian or vehicular traffic on public streets, sidewalks, alleys and bridges within the city); G.S. 160A-300.1 (permitting cities to install red light cameras and impose civil penalties for running a red light in violation of G.S. 20-158); G.S. 160A-300.6 (authorizing cities, notwithstanding contrary provisions of state law, to allow and regulate the operation of golf carts on public streets); G.S. 160A-301 (allowing cities to regulate parking).

Counties are in a different posture, however, as G.S. 153A-121(b) specifies that counties’ general ordinance-making powers do not confer authority to “regulate or control vehicular or pedestrian traffic on a street or highway under control of the Board of Transportation.” Since all public roads in the county are state-controlled, counties can only regulate in this area as specifically authorized by other provisions of state law.

The state’s motor vehicle laws expressly authorize local regulation of certain traffic activities. See G.S. 20-141 (authorizing local authorities to set higher or lower speed limits on certain streets within their jurisdictions); G.S. 20-158 (permitting local authorities to erect traffic signs and signals); G.S. 20-169 (authorizing local authorities to enact ordinances that: (1) regulate heavy or continuous traffic by signaling device; (2) establish one-way streets; (3) regulate use of the highways by processions or assemblages; (3) set speed limits in public parks; and (4) authorize law enforcement or emergency vehicles to preempt traffic signals).

When a proposed vehicle regulation is expressly sanctioned by state statute, such as the regulation of golf carts on public streets, see G.S. 153A-245 and 160A-300.6 (discussed here), the inquiry ends, and the local government may act pursuant to the statutorily conferred authority.

In contrast, when the regulation satisfies a generally permissible purpose but is not expressly authorized, the local government must consider whether the proposed regulation is consistent with state law. See G.S. 160A-174(b). And while there are obvious ways in which regulation may conflict with state or federal law, such as by permitting conduct expressly forbidden by state or federal law or by regulating a verboten subject, there are two other, less intuitive, ways in which local regulation may be deemed inconsistent.

First, a local ordinance may not – absent an express grant of authority – define and punish an act that already defined as a crime or infraction under state law. G.S. 160A-174(b)(6). An example of this type of inconsistent regulation was highlighted a few years ago when the News and Observer reported that police officers in the City of Raleigh exercised unbridled discretion in determining whether to cite speeding drivers for a violation of state law or, instead, a violation of the city’s ordinance regulating the same conduct. Being cited for a city ordinance violation versus a state law infraction or misdemeanor pursuant to G.S. 20-141 was thought to be a more favorable outcome for drivers, as it required no appearance in court and carried no risk of collateral license or insurance consequences. Shortly after the story, as reported here, the Raleigh city attorney acknowledged that the city lacked authority to regulate speeding in this manner and reported that city police officers had been instructed to discontinue the practice.

Second, a local ordinance may not regulate a field for which a state or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation. G.S. 160A-174(b)(5).

So let’s suppose that instead of prohibiting speeding, a city wants adopt an ordinance banning mobile phone use by drivers within in jurisdiction, with an exception for emergency situations. (The Town of Chapel Hill considered such regulation earlier this year. You can read town attorney Ralph Karpinos’ thoughtful analysis regarding the town’s authority here.) May a city do that? The proposed ordinance regulates an act that arguably is detrimental to the safety of city citizens so it falls within the city’s general ordinance-making power. No state or federal law expressly prohibits local regulation of mobile phone use by drivers. And while state law prohibits mobile phone use by drivers under eighteen and by school bus drivers, and bans texting or emailing while driving, it doesn’t impose an outright ban on drivers’ mobile phone use. Thus, the proposed ordinance would not define an offense with the same elements of a state (or federal) offense. The determinative question is whether the field is preempted.

If the regulatory scheme “is so complete in covering the field that it is clear any regulation on the [local] level would be contrary to the statewide regulatory purpose” then local regulation is preempted pursuant to G.S. 160A-174(b)(5). Craig v. County of Chatham, 356 N.C. 40, 46 (2002). There is no requirement that the local regulation be expressly barred—the completeness of the scheme is sufficient to establish preemption.

Do the three state statutes regulating mobile phone use by drivers constitute a complete and integrated regulatory scheme? One provision of G.S. 20-137.4—the statute banning mobile phone use by school bus drivers—indicates they do not. G.S. 20-137.4(e) specifies that “[n]o local government may pass any ordinance regulating the use of mobile telephones or additional technology associated with a mobile telephone by operators of school buses.” If regulation of mobile phone use by drivers is preempted from local legislation, then G.S. 20-137.4(e) is surplusage, an interpretation disfavored by rules of statutory construction.

On the other hand, the mobile phone use statutes comprise a portion of the extensive vehicle equipment regulation codified in Part 9 of Article 3 of Chapter 20. The first provision of Part 9, G.S. 20-115, provides that “local authorities shall have no power or authority to alter said limitations [regarding vehicle size, weight, construction, and equipment] except as express authority may be granted in this Article.” This comprehensive scheme for regulating equipment associated with vehicles favors a view that the field is preempted. Also relevant is that local regulation of mobile phone use by drivers may subject drivers to different rules in different jurisdictions, an outcome inconsistent with the generally uniform nature of motor vehicle regulation. See Craig, 356 N.C. at 48 (2002) (considering risk of different, conflicting rules in different jurisdictions relevant to inquiry regarding whether local ordinances regulating swine farms were preempted by statewide swine farm regulation crafted to balance the interests of swine farmers and adjoining landowners).

Given the arguments in favor of and opposed to preemption with respect to regulation of the use of mobile phones in vehicles, I won’t hazard a guess as to whether a court would consider such an ordinance preempted if challenged.

Category: Motor Vehicles, Uncategorized | Tags: cell phones, local government, motor vehicles, preemption, traffic offenses

Stick to the Plan (er, Policy)

Posted on May 4, 2009 by Shea Denning

Before December 1, 2006, GS 20-16.3A set forth requirements governing impaired driving checkpoints but not other types of checking stations and roadblocks. While non-DWI checking stations and roadblocks had to satisfy the strictures of the state and federal constitution, no specific statutory procedures governed their establishment and use. The Motor Vehicle Driver Protection Act of 2006 (S.L. 2006-253), rewrote G.S. 20-16.3A to govern all motor vehicle checking stations, and to require, among other things, that checkpoints be conducted pursuant to a written policy that provides guidelines for the pattern pursuant to which vehicles are stopped. It seems likely that questions will arise regarding whether a court may or must suppress evidence obtained from a checkpoint that is not conducted in compliance with statutory requirements.

The answer with respect to at least one statutory requirement is no. G.S. 20-16.3A(d) requires that the placement of checkpoints be random or statistically indicated and that agencies avoid placing checkpoints repeatedly in the same area. Subsection (d) specifies, however, that a violation of “[t]his subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of the checking station.”

No such statutory direction is provided with respect to the other requirements. Cases decided under previous iterations of G.S. 20-16.3A may, however, provide some guidance. In State v. Barnes, 123 N.C. App. 144 (1996), the court considered whether stopping and detaining the defendant at a checkpoint established by the state highway patrol to “detect driver’s license and registration violations as well as other motor vehicle violations including driving while impaired” was constitutional. The trial court had concluded that the checkpoint failed to meet guidelines established by G.S. 20-16.3A and a directive of the state highway patrol and thus was an unreasonable seizure under the Fourth Amendment. The court of appeals reversed, determining that the trial court’s findings showed “substantial compliance” with G.S. 20-16.3A and the patrol’s directive, and thus no Fourth Amendment violation.

In State v. Colbert, 146 N.C. App. 506 (2001), the court of appeals likewise reversed the trial court’s granting of the defendant’s motion to suppress evidence obtained as a result of an impaired driving checkpoint stop upon finding the checkpoint plan constitutionally permissible and in compliance with G.S. 20-16.3A.

Thus, in both Barnes and Colbert, for checkpoints governed by G.S. 20-16.3A, consideration of whether the requirements of G.S. 20-16.3A were followed was central to the court’s analysis of the constitutionality of the checkpoint and the propriety of suppression of the evidence.

In State v. Tarlton, 146 N.C. App. 417 (2001), the defendant appealed from the trial court’s denial of his motion to suppress evidence obtained as a result of a license checkpoint stop, arguing in part that the state failed to prove the constitutionality of the checkpoint because the written policy by which the checkpoint was conducted was not admitted into evidence. The court of appeals affirmed the trial court, holding that a written plan was not a constitutional requirement, and that the license check was not governed by former G.S. 20-16.3A (1999), which, as previously noted, applied only to impaired driving checks. It is unclear whether a court would reach the same conclusion for a checkpoint governed by current G.S. 20-16.3A for which there was no written policy.

While a court conceivably could construe noncompliance with G.S. 20-16.3A as rendering a checkpoint unconstitutional under the theory that the statutorily required procedures act as a substitute for the Fourth Amendment reasonableness inquiry, such a theory is unsupported by any state law precedent, and seems unlike to be adopted. Other courts have concluded that checkpoint policies themselves serve such a purpose. See, e.g., State v. McDermott, 1999 WL 1847364 (Del. Ct. Comm. Pleas April 30, 1999) (concluding that the Delaware State Police Policy was created to ensure compliance with the reasonableness requirement of the Fourth Amendment) (unpublished op.); see also Commonwealth v. Anderson, 547 N.E.2d 1134 (Mass. 1989) (noting that “[o]nce the Department of Public Safety and the State police have adopted such standard, written guidelines for the conduct of roadblocks, which have been accepted as a sufficient substitute for the usual Fourth Amendment ‘reasonableness’ demands, it follows that the Commonwealth must carefully comply with them.”).

It seems more likely that courts confronted with suppression motions based on noncompliance with current GS 20-16.3A will distinguish statutory compliance from constitutionality. And in such cases, there is no explicit statutory authority for ordering suppression based merely upon a statutory, rather than a constitutional, violation. The expanded exclusionary rule codified in G.S. 15A-974(2) requires suppression of evidence for a substantial violation of Chapter 15A, but there is no corresponding statutory exclusionary rule encompassing violations of Chapter 20.

Notwithstanding the lack of explicit statutory authority to suppress, suppression may still be an appropriate remedy for substantial noncompliance with G.S. 20-16.3A. After all, courts have held that suppression of test results is the appropriate remedy for statutory violations related to administration of a chemical analysis under the implied consent laws even though no statute explicitly grants the authority to suppress evidence for such a violation. See, e.g., State v. Hatley, 661 S.E.2d 43 (2008); State v. Myers, 118 N.C. App. 452 (1995). A court could, in my view, reasonably conclude that suppression likewise is the appropriate remedy for statutory violations related to checkpoints, except, of course, for violations of the type for which the legislature has stated that suppression is not an appropriate remedy.

Category: Search and Seizure, Uncategorized | Tags: DWI, suppression, traffic offenses

Do You Know How Fast You Were Driving?

Posted on April 27, 2009 by Shea Denning

Recently, I blogged about limitations on a judge’s authority to enter a disposition of prayer for judgment continued in speeding cases depending upon the speeding charge. (You can read that post here.) The recent discussion regarding judgments in speeding cases begs the question of why specific speeds are part of the adjudication in the first place.

A person can violate the speed restrictions that apply on North Carolina roads in one of three ways: (1) by driving at a speed greater than is reasonable and prudent under existing conditions ; (2) by exceeding maximum speed limits; or (3) by operating a vehicle at less than a minimum posted speed. See G.S. 20-141. Generally speaking, speeding is an infraction — a noncriminal violation of the law — punishable by a penalty of not more than $100. Driving on a highway at a speed of more than 15 miles per hour over the speed limit or over 80 miles per hour, however, is a Class 2 misdemeanor, punishable by up to 60 days imprisonment, depending upon the person’s prior record level.

A plain reading of the statute reveals that charges involving the second variety of speeding (which is commonly referred to as exceeding the posted speed, though there is no requirement that the speed be posted unless it is higher or lower than the presumptive 35 mph inside municipal corporate limits or 55 mph outside municipal corporate limits) require only a determination of whether the person drove a vehicle on a highway in excess of the maximum speed limit by driving more than 15 mph or by driving more than 80 mph, in which case the person committed a misdemeanor criminal offense. Otherwise, the offense is an infraction.

But in many speeding cases involving charges of exceeding the maximum speed, both the charges and the determination of the person’s responsibility (in the case of an infraction) or guilt (in the case of a misdemeanor) is far more precise. The citation issued to a defendant often, but not always, specifies the rate of speed (and, indeed, may even specify the rate of speed registered by radar, which can be different from the speed “charged” on the citation). And, as noted in my earlier post, those charges may be changed by the district attorney before the case proceeds to trial. When a defendant pleads guilty to a speeding charge in which the specific speed is alleged, the defendant pleads not just to speeding but to driving a specific speed in a specific speed zone. In a bench trial in district court, the judge may find the defendant not responsible or not guilty of the charged offense or responsible or guilty of the charged offense or a lesser included offense. The infraction of exceeding the maximum speed is a lesser included offense of the misdemeanor. In addition, unless the speeding charged is speeding more than 25 miles per hour over the posted speed limit, a violation of G.S. 20-123.2, which prohibits driving a motor vehicle on a highway without a working speedometer, is a lesser included offense of speeding.

If a defendant is found guilty or responsible in district court for a violation of G.S. 20-141, the judge may find the defendant guilty or responsible not only for speeding but also for driving a particular speed, which, again, is a determination that may have collateral licensure and insurance consequences. The same holds true for the jury in superior court.

A judge may enter a prayer for judgment continued in a speeding case, subject to the limitations mentioned in the earlier post. The entry of a prayer for judgment prevents the conviction from being considered by DMV for license points and revocation purposes (until the third or subsequent prayer for judgment continued in a five-year period) and from resulting in the accumulation of points under North Carolina’s Safe Driver Incentive Plan.

It also bears mentioning that many speeding violations are waivable offenses. The Conference of Chief District Court Judges promulgates annually a list of traffic offenses for which magistrates and clerks of court may accept written appearances, waivers of trial, and pleas of guilty or admissions of responsibility. The traffic offense waiver list effective for offenses committed on or after December 1, 2008, is available here. Speeding is a waivable offense so long as the speed driven does not exceed 80 mph and is not more than 15 mph over the speed limit if the speed driven is over 55 mph. A person originally cited for a nonwaivable speeding offense may, upon the district attorney’s reduction of those charges to a waivable charge, dispose of those charges by waiving appearance and trial and pleading guilty or responsible to the magistrate or clerk and paying the applicable fine and costs.

Category: Crimes and Elements, Uncategorized | Tags: PJC, speeding, traffic offenses

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