New legislation on Habitual DWI and comments from Shea Denning at the NC SOG.
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2017-176
SENATE BILL 384
AN ACT to AMEND THE LAW REGARDING THE USE OF MOTIONS FOR APPROPRIATE RELIEF; to clarify the definition of “felony offense” for purposes of the habitual felon law and to remove the sunset on drivers license eligibility for persons convicted of habitual impaired driving; to include breaking and entering with the intent to terrorize as a habitual breaking and entering status offense; to clarify that when a person is charged with an offense which requires mandatory fingerprinting, fingerprinting will be ordered by the court if the offender was not arrested and fingerprinted at the time of the offense; to provide that a private citizen’s showing of probable cause to the magistrate shall include sufficient information supported by oath OR AFFIRMATION that a crime has occurred and shall issue as a summons unless a substantial LIKELIHOOD exists that the defendant will not RESPOND to a SUMMONS; AND TO AMEND THE SHERIFF’S SUPPLEMENTAL PENSION FUND.
The General Assembly of North Carolina enacts:
PART I. MOTIONS FOR APPROPRIATE RELIEF
SECTION 1.(a) G.S. 15A‑1413(d) reads as rewritten:
“(d) All motions for appropriate relief filed in superior court shall, when filed, be referred to the senior resident superior court judge, who shall assign the motion as provided by this section for review and administrative action, including, as may be appropriate, dismissal, calendaring for hearing, entry of a scheduling order for subsequent events in the case, including disclosure of expert witness information described in G.S. 15A‑903(a)(2) and G.S. 15A‑905©(2) for expert witnesses reasonably expected to be called at a hearing on the motion, or other appropriate actions.
All motions for appropriate relief filed in district court shall, when filed, be referred to the chief district court judge, who shall assign the motion as provided by this section for review and administrative action, including, as may be appropriate, dismissal, calendaring for hearing, entry of a scheduling order for subsequent events in the case, or other appropriate actions.”
SECTION 1.(b) G.S. 15A‑1420(b1) reads as rewritten:
“§ 15A‑1420. Motion for appropriate relief; procedure.
(b1) Filing Motion With Clerk. –
(1) The proceeding shall be commenced by filing with the clerk of superior court of the district wherein the defendant was indicted a motion, with service on the district attorney in noncapital cases, and service on both the district attorney and Attorney General in capital cases.
(2) The clerk, upon receipt of the motion, shall place the motion on the criminal docket. When a motion is placed on the criminal docket, the clerk shall promptly bring the motion, or a copy of the motion, to the attention of the senior resident superior court judge or chief district court judge, as appropriate, for assignment to the appropriate judge pursuant to G.S. 15A‑1413.
(3) The judge assigned to the motion shall conduct an initial review of the motion. If the judge determines that all of the claims alleged in the motion are frivolous, the judge shall deny the motion. If the motion presents sufficient information to warrant a hearing or the interests of justice so require, the judge shall appoint counsel for an indigent defendant who is not represented by counsel. Counsel so appointed shall review the motion filed by the petitioner and either adopt the motion or file an amended motion. After postconviction counsel files an initial or amended motion, or a determination is made that the petitioner is proceeding without counsel, the judge may direct the State to file an answer. Should the State contend that as a matter of law the defendant is not entitled to the relief sought, the State may request leave to file a limited answer so alleging.”
SECTION 1.© G.S. 7A‑451(a) reads as rewritten:
“§ 7A‑451. Scope of entitlement.
(a) An indigent person is entitled to services of counsel in the following actions and proceedings:
(1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;adjudged.
(2) A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;Statutes.
(3) A motion for appropriate relief under Chapter 15A of the General Statutes if appointment of counsel is authorized by Chapter 15A of the General Statutes and the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment;imprisonment.
(4) A hearing for revocation of probation;probation.
(5) A hearing in which extradition to another state is sought;sought.
(6) A proceeding for an inpatient involuntary commitment to a facility under Part 7 of Article 5 of Chapter 122C of the General Statutes, or a proceeding for commitment under Part 8 of Article 5 of Chapter 122C of the General Statutes.
(7) In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes;Statutes.
(8) In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible;possible.
(9) A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes;Statutes.
(10) Repealed by Session Laws 2003, c. 13, s. 2(a), effective April 17, 2003, and applicable to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of April 17, 2003.
(11) A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes;Statutes.
(12) In the case of a juvenile alleged to be abused, neglected, or dependent under Subchapter I of Chapter 7B of the General Statutes;Statutes.
(13) A proceeding to find a person incompetent under Subchapter I of Chapter 35A, of the General Statutes;Statutes.
(14) A proceeding to terminate parental rights where a guardian ad litem is appointed pursuant to G.S. 7B‑1101;G.S. 7B‑1101.
(15) An action brought pursuant to Article 11 of Chapter 7B of the General Statutes to terminate an indigent person’s parental rights.
(16) A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A‑450.1, 7A‑450.2, and 7A‑450.3 shall not apply to this proceeding.
(17) A proceeding involving limitation on freedom of movement or access pursuant to G.S. 130A‑475 or G.S. 130A‑145.
(18) A proceeding involving placement into satellite monitoring under Part 5 of Article 27A of Chapter 14 of the General Statutes.”
SECTION 1.(d) This section becomes effective December 1, 2017, and applies to motions for appropriate relief filed on or after that date.
PART II. HABITUAL FELONS/CLARIFY PREVIOUS CONVICTIONS
SECTION 2.(a) G.S. 14‑7.1 reads as rewritten:
“§ 14‑7.1. Persons defined as habitual felons.
(a) Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender pursuant to this Article.
(b) For the purpose of this Article, a felony offense is defined as an to include all of the following:
(1) An offense which that is a felony under the laws of the State or other sovereign wherein a this State.
(2) An offense that is a felony under the laws of another state or sovereign that is substantially similar to an offense that is a felony in North Carolina, and to which a plea of guilty was entered, or a conviction was returned regardless of the sentence actually imposed.
(3) An offense that is a crime under the laws of another state or sovereign that does not classify any crimes as felonies if all of the following apply:
a. The offense is substantially similar to an offense that is a felony in North Carolina.
b. The offense may be punishable by imprisonment for more than a year in state prison.
c. A plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.
(4) An offense that is a felony under federal law. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article.
© For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felony offenses prior to July 6, 1967, shall not be felony offenses within the meaning of this Article. Any felony offense to which a pardon has been extended shall not for the purpose of this Article constitute a felony. The burden of proving such pardon shall rest with the defendant and the State shall not be required to disprove a pardon.”
SECTION 2.(b) Section 7 of S.L. 2009‑369, as amended by Section 61.5 of S.L. 2014‑115, reads as rewritten:
“SECTION 7. This act becomes effective December 1, 2009, and applies to applications for reinstatement that occur on or after that date. This act expires December 1, 2016.”
SECTION 2.© Subsection (a) of this section becomes effective December 1, 2017, and applies to any offense committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon. Subsection (b) of this section is retroactively effective December 1, 2016. The remainder of this section is effective when it becomes law. Prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.
PART III. INCLUDE BREAKING AND ENTERING WITH INTENT TO TERRORIZE IN HABITUAL BREAKING AND ENTERING
SECTION 3.(a) G.S. 14‑7.25 reads as rewritten:
“§ 14‑7.25. Definitions.
The following definitions apply in this Article:
(1) "Breaking and entering.” – The term means any of the following felony offenses:
a. First degree burglary (G.S. 14‑51).
b. Second degree burglary (G.S. 14‑51).
c. Breaking out of dwelling house burglary (G.S. 14‑53).
d. Breaking or entering buildings generally (G.S. 14‑54(a)).
d1. Breaking or entering with intent to terrorize or injure an occupant of the building (G.S. 14‑54(a1)).
e. Breaking or entering a building that is a place of religious worship (G.S. 14‑54.1).
f. Any repealed or superseded offense substantially equivalent to any of the offenses in sub‑subdivision a., b., c., d., or e. of this subdivision.
g. Any offense committed in another jurisdiction substantially similar to any of the offenses in sub‑subdivision a., b., c., d., or e. of this subdivision.
(2) "Convicted.“ – The person has been adjudged guilty of or has entered a plea of guilty or no contest to the offense of breaking and entering.
(3) "Status offender.” – A person who is a habitual breaking and entering status offender as described in G.S. 14‑7.26.“
SECTION 3.(b) This section becomes effective December 1, 2017, and applies to offenses committed on or after that date.
PART IV. FINGERPRINTING UPON ARREST
SECTION 4.(a) G.S. 15A‑502 is amended by adding a new subsection to read:
"§ 15A‑502. Photographs and fingerprints.
(e) Fingerprints or photographs taken pursuant to subsection (a), (a1), or (a2) of this section may be forwarded to the State Bureau of Investigation, the Federal Bureau of Investigation, or other law‑enforcement agencies.
(f) If a person is charged with an offense for which fingerprints are required pursuant to this section but the person is not arrested for that offense, the court before which the charge is pending shall order the defendant to submit to fingerprinting by the Sheriff or other appropriate law enforcement agency at the earliest practical opportunity. If the person fails to appear for fingerprinting as ordered by the court, the sheriff shall so inform the court, and the court may initiate proceedings for criminal contempt against the person pursuant to G.S. 5A‑15, including issue of an order for arrest pursuant to G.S. 5A‑16, if necessary. The defendant shall continue to be subject to the court’s order to provide fingerprints until submitted.”
SECTION 4.(b) This section becomes effective December 1, 2017.
PART V. CITIZEN’S WARRANTS
SECTION 5.(a) G.S. 15A‑304(b) reads as rewritten:
“(b) When Issued. – A warrant for arrest may be issued, instead of or subsequent to a criminal summons, when it appears to the judicial official that the person named should be taken into custody. Circumstances to be considered in determining whether the person should be taken into custody may include, but are not limited to, failure to appear when previously summoned, facts making it apparent that a person summoned will fail to appear, danger that the person accused will escape, danger that there may be injury to person or property, or the seriousness of the offense.
(1) Upon a finding of probable cause pursuant to subsection (d) of this section, the issuing official shall issue a criminal summons instead of a warrant, unless the official finds that the accused should be taken into custody. Circumstances to be considered in determining whether the accused should be taken into custody may include, but are not limited to, any of the following:
a. The accused has a history of failure to appear before the court as required, or there is other evidence that the person is unlikely to appear in response to a summons for the current proceeding.
b. There is evidence that the accused is likely to escape or otherwise flee the State in order to avoid prosecution for the offense alleged.
c. There is evidence of imminent danger of harm to persons or property if the accused is not taken into custody.
d. The location of the accused is not readily discoverable, such that a criminal summons would be unlikely to be served before any court date assigned at the time of issue.
e. A relevant statute provides that arrest is mandatory for an offense charged.
f. The seriousness of the offense. However, the fact that the offense charged is a felony shall not, by itself, constitute grounds for the issuance of a warrant.
(2) Notwithstanding subsection (d) of this section, an official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit. If the finding of probable cause pursuant to subsection (d) of this section is based solely upon the written affidavit of a person who is not a sworn law enforcement officer, the issuing official shall not issue a warrant for arrest and instead shall issue a criminal summons, unless one of the following circumstances exists:
a. There is corroborating testimony of the facts establishing probable cause from a sworn law enforcement officer or at least one disinterested witness.
b. The official finds that obtaining investigation of the alleged offense by a law enforcement agency would constitute a substantial burden for the complainant.
c. The official finds substantial evidence of one or more of the grounds listed in subdivision (1) of this subsection.”
SECTION 5.(b) This section becomes effective December 1, 2017, and applies to warrants issued on or after that date.
PART VI. SHERIFFS’ SUPPLEMENTAL PENSION FUND CHANGES
SECTION 6.(a) G.S. 143‑166.82 reads as rewritten:
“§ 143‑166.82. Assets.
(a) On and after July 1, 1985, each Clerk of Superior Court shall remit to the Department of Justice the monthly receipts collected pursuant to G.S. 7A‑304 (a)(3a) to be deposited to the credit of the Sheriffs’ Supplemental Pension Fund, hereinafter referred to as the Fund, to be used in making monthly pension payments to eligible retired sheriffs under the provisions of this Article and to pay the cost of administering the provisions of this Article.
(a1) The Department of Justice shall, at the beginning of each calendar year, calculate the amount of funds, in addition to those funds from subsection (a) of this section and from G.S. 143‑166.83(f), needed for that year to pay the pension benefits under this Article and shall bill each county for that amount on a pro rata basis based on the most recent population estimates by the Office of State Budget and Management for each county. The amount so billed shall be paid by each county no later than March 1st of that year to the Department of Justice and shall be deposited into the Fund. For funding this contribution to the Fund, counties may use the portion of the civil process service fee per G.S. 7A‑311(a)(1) that is not required by statute to be used to ensure the timely service of process within the county, may use other funds, or both.
(b) The State Treasurer shall be the custodian of the Sheriffs’ Supplemental Pension Fund and shall invest its assets in accordance with the provisions of G.S. 147‑69.2 and G.S. 147‑69.3.”
SECTION 6.(b) G.S. 143‑166.83 reads as rewritten:
“§ 143‑166.83. Disbursements.
(a) Repealed by Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 54, effective January 1, 1993.
(b) Immediately following January 1, 1993, and the first of January of each succeeding calendar year thereafter, the Department of Justice shall divide an amount equal to ninety percent (90%) of the assets of the Fund at the end of the preceding calendar year and shall add to that amount any assets remaining pursuant to subsection (f) of this section and the amounts pursuant to G.S. 143‑166.82(a1) and disburse the same as monthly payments in accordance with the provisions of this Article.
© Ten percent (10%) of the Fund’s assets as of January 1, 1993, and at the beginning of each calendar year thereafter, may be used by the Department of Justice in administering the provisions of this Article. This ten percent (10%) is to be derived from the Fund’s assets prior to the addition of assets remaining pursuant to subsection (f) of this section.
(d) All the Fund’s disbursements shall be conducted in the same manner as disbursements are conducted for other special funds of the State.
(e) If, for any reason, the Fund shall be insufficient to pay any pension benefits owed under this Article or other charges, then all benefits or payments shall be reduced pro rata for as long as the deficiency in amount exists. No claim shall accrue with respect to any amount by which a pension payment shall have been reduced.
(f) Any assets remaining after reserving an amount equal to the disbursements required under subsections (b) and © of this section shall be accrued and included in disbursements for pensioners in succeeding years.”
SECTION 6.© G.S. 143‑166.85 reads as rewritten:
“§ 143‑166.85. Benefits.
(a) An eligible retired sheriff shall be entitled to and receive an annual pension benefit, payable in equal monthly installments, equal to one share for each full year of eligible service as sheriff multiplied by his total number of years of eligible service. The amount of each share shall be determined by dividing the total number of years of eligible service for all eligible retired sheriffs on December 31 of each calendar year into the amount to be disbursed as monthly pension payments in accordance with the provisions of G.S. 143‑166.83(b). In no event however shall a monthly pension under this Article exceed an amount, which an amount that, when added to a retired allowance at retirement from the Local Governmental Employees’ Retirement System or to the amount he would have been eligible to receive if service had not been forfeited by the withdrawal of accumulated contributions, is greater than equal to seventy‑five percent (75%) of a sheriff’s equivalent annual salary immediately preceding retirement computed on the latest monthly base rate, to a maximum amount that does not exceed (i) of one thousand five hundred dollars ($1,500).($1,500) or (ii) the sheriff’s equivalent annual salary immediately preceding retirement computed on the latest monthly base rate when the benefit described in this subsection is added to the amount of the benefit the sheriff receives under G.S. 143‑166.42 and the amount of the sheriff’s retired allowance at retirement from the Local Governmental Employees’ Retirement System or the amount the sheriff would have been eligible to receive if service had not been forfeited by the withdrawal of accumulated contributions.
(b) All monthly pensions payable under this Article shall be paid on the last business day of each month.
© At the death of the pensioner, benefits for the current calendar year will continue and be paid in monthly installments to the decedent’s spouse or estate, in accordance with the provisions of Chapter 28A of the General Statutes. Benefits will cease upon the last payment being made in December of the current year.
(d) Monthly pensions payable under this Article will cease upon the full‑time reemployment of a pensioner with an employer participating in the Local Governmental Employees’ Retirement System for as long as the pensioner is so reemployed.
(e) Repealed by Session Laws 1989, c. 792, s. 2.9.
(f) Nothing contained in this Article shall preclude or in any way affect the benefits that a pensioner may be entitled to from any state, federal or private pension, retirement or other deferred compensation plan.”
SECTION 6.(d) This section becomes effective January 1, 2018.
PART VII. EFFECTIVE DATE
SECTION 7. Except as otherwise provided, this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 30th day of June, 2017.
Legislation enacted by the General Assembly this session again makes it possible for persons convicted of habitual impaired driving to (eventually) have their driving privileges restored.
S.L. 2017-176 (S 384) removed the sunset clause in the 2009 legislative act that created G.S. 20-19(e4), putting that statutory provision, which expired in December 1, 2016, back on the books. Effective July 21, 2017, a person whose driver’s license is permanently revoked for a conviction of habitual impaired driving may have his or her driver’s license restored upon satisfying the following conditions:
- The person’s license must have been revoked for at least 10 years following the completion of any sentence imposed for habitual impaired driving;
- The person must not have been convicted of any criminal offense in any state or federal court in the 10 years preceding the date of the application; and
- The person must not currently use alcohol, unlawfully use any controlled substance, or excessively use prescription drugs.
The restoration of a person’s driver’s license pursuant to G.S. 20-19(e4) is conditioned upon the person only driving a vehicle equipped with ignition interlock and not driving with any measurable alcohol concentration. G.S. 20-17.8(b). These conditions remain in effect for seven years from the date of restoration. G.S. 20-17.8©(3).
Since the habitual DWI restoration provision was first enacted in 2009, 216 people have had their driver’s licenses restored. There are around 300 convictions for habitual impaired driving each year. Depending upon the numbers of people in this population who are able to satisfy the restoration criteria, restoration applications for such drivers could number in the hundreds each year.
If the legislative history is a guide, the pilot legislation enacted in 2009 to restore licenses to this population has been successful. The first iteration of the restoration provision was set to expire in 2014. It was then extended to 2016. And now it is back on the books with no sunset date.