Posts Categorized: New Legislation

REVENGE PORN: POSTING INTIMATE IMAGES MEANT FOR PRIVATE VIEWING IS A FELONY IN N.C.

Your longtime girlfriend hooks up with your roommate and you are livid. In a moment of anger and heartbreak, you post a graphic video clip of the sex tape you and she made, label it “My Ex: the Back-Stabbing Bitch” and post it online.  This rash action can result in a civil and criminal case, confiscation of your phone and computer and arrest under the new “Revenge Porn” law. Posting “Revenge Porn” online will be a felony for adults and a misdemeanor for those under 18 years of age as of December 1, 2015 in the state of North Carolina.

Revenge Porn refers to the posting of intimate images (breasts with nipple visible, male and female genitalia/pubic area and anal area) for the purposes of harassment or humiliation when the poster of the material knows that the images were disclosed in the context of a personal relationship and with a reasonable expectation of privacy.

A “personal relationship” is defined as: current or former spouses; persons of opposite sex who live together or have lived together; persons who have a child in common; current or former household members and persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship. (NCGS 50B‑1(b).)

All the following elements must be proven:

“(1)     The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2)      The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3)      The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4)      The person discloses the image without the affirmative consent of the depicted person.

(5)     The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.” (NCGS§ 14‑190.5A)

This is a complicated law and defenses exist under the First Amendment, statutory exceptions and qualifiers. Please contact me to discuss the specifics of your case.


NC License Restoration Act = good news if your driving privilege has been revoked/suspended

The North Carolina Drivers License Restoration Act, H 529, recently passed by General Assembly, should help people convicted of certain types of Driving while License Revoked (DWLR) charges from having additional years tacked on to their revocation period. Currently, whenever a person was trying to get their driving privilege reinstated but had to drive anyway (such as to work}, any additional convictions of No Operator’s License (NOL) or DWLR, would result in another one year extension before the person could qualify to apply for a valid license. A second conviction of DWLR would result in an additional two year revocation and a third conviction for driving while license revoked led to a permanent license revocation.

If the governor signs H 529, a person convicted of DWLR under G.S. 20-28(a) on or after December 1,2015, would no longer be subject to a mandatory additional period of license revocation. This is really significant. If your driving privilege has been revoked or suspended, contact me. Passage of H 529 is a big step in the direction of obtaining a valid driver’s license.


Registration of Mopeds Now Required, Insurance…2016

If you have/drive a moped, you must now get it registered before you can motor on highways or public vehicular areas.(G.S. 20-53.4, effective July 1, 2015)

A moped is defined as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” (G.S. 20-4.01(21a), see G.S. 105-164.3).

If you have a moped that can go faster than 30 mph, registration has already been required. G.S. 20-50(a).

To get your moped registered, you must have a manufacturer’s certificate of origin and the moped must be designed and manufactured for use on highways or public vehicular areas.

The fee for registering a moped is $18.00. But residents of Durham, Orange, Randolph, and Wake counties will have to pay additional county surcharges. G.S. 20-87(6).

If you get caught driving an unregistered moped on a street or highway, allowing a moped someone else to drive your unregistered moped or not displaying your registration, it is a Class 3 misdemeanor. G.S. 20-111(1).

Right now, moped insurance is not required but that won’t be the case for long. The General Assembly ratified a bill recently which amends the law (G.S. 20-309(a)) and requires owners of mopeds as of July 1, 2016 to have insurance.


Finally, a requirement that a person in custody be able to clear outstanding warrants

A new NC law requires that when someone is in jail on one case and the person has outstanding warrants on unrelated matters, the Department of Corrections and each court where the defendant appears must identify all outstanding warrants so that the incarcerated person can clear up these burdensome and expensive warrants while they are in custody.
This may not seem like a big deal but it is. Clearing up outstanding warrants:unpaid traffic tickets, cases when the person failed to appear etc. not only deprives the incarcerated person of concurrent jail time but subjects them to future arrest and keeps the system clogged with warrants.
In the legal world, the phrase is “judicial economy’ but in the real world, it is called “efficiency” and/or “killing two birds with one stone.” In California, where I practiced previously, when a person was incarcerated on one case, the computer would generate a list of all their outstanding warrants from any county in the state. Then that person would “make the rounds.” All the arrest warrants issued for unpaid tickets, failures to appear and violations of probations would be resolved expeditiously. Minor traffic and misdemeanor cases would typically either be dismissed or the defendant would received a time served sentence which would run concurrently (at the same time) as the charge for which the person was in jail in the first place.
Now when a person gets out of jail, that person will have cleaned up all outstanding warrants and need not need to fear arrest for warrants which had been in the system but not flagged.The law also states that the Department of Adult Correction, the police, the prosecutors and the courts must develop a process to identify and resolve all outstanding warrants while the person is in jail.
If you or a loved one is in jail and they have outstanding warrants, this law is tasked with forcing the system to help the incarcerated person clean up cases so when they are released, they can be unencumbered by the past and can focus on their future.
The new law is S.L. 2015-48 (H 570): Duty to identify outstanding arrest warrants. Amended G.S. 15A-301.1 creates the requirement that the custodial law enforcement agency must attempt to identify all outstanding warrants and notify appropriate law enforcement agencies of the person’s location. The same duty is imposed on a court before entering any court order in a criminal case. Newly enacted G.S. 148-10.5 requires the Division of Adult Correction of the Department of Public Safety to work with law enforcement, district attorneys’ offices, and courts to develop a process at intake and before release to identify all outstanding warrants for an inmate and to resolve them while he or she is in custody, if feasible. The inmate must be notified of the outstanding warrant and any right to counsel. [This session law is effective October 1, 2015]


New NC Laws: Deferrals for misdemeanors/ Class H or I felonies and reduced penalty for marijuana paraphernalia

1) Misdemeanor and Felony Deferrals- Amended G.S. 15A-1341 (probation), effective December 1, 2014, provides that when a defendant pleads guilty or is found guilty of a Class H or I felony or a misdemeanor, the court may, on the joint motion of the defendant and the prosecutor, defer further proceedings for the possibility of conditional discharge. The court must make certain findings (defendant has not been convicted of a felony or a misdemeanor involving moral turpitude, not previously placed on probation, etc.) without entering a judgment of guilt and place the defendant on probation to allow the defendant to demonstrate good conduct. Another conditional discharge provision provides that when a defendant is eligible for the drug treatment court program, a court may, without entering a judgment of guilt and with the defendant’s consent, defer proceedings and place the defendant on probation to allow participation in and completion of the drug treatment court program.On fulfillment of the terms and conditions of a conditional discharge, a plea or finding of guilt previously entered must be withdrawn and the court must discharge the defendant and dismiss the proceedings. However, if there is a violation of a term or condition of conditional discharge, the court may enter an adjudication of guilt and proceed as otherwise provided.
2) Reduced punishment if defendant possesses marijuana paraphernalia. New G.S. 90-113.22A
creates the Class 3 misdemeanor of possession of marijuana paraphernalia, and marijuana is removed from the current Class 1 misdemeanor of possession of drug paraphernalia in G.S. 90-113.22. Also, the new Class 3 misdemeanor is made a lesser-included offense of the Class 1 misdemeanor. These changes are effective for offenses committed on or after December 1, 2014.
S.L. 2014-119 (H 369)


No E-cigarettes for those under 18

The opportunity to smoke electronic cigarettes (those with a nicotine vapor) if you are under 18, has come and gone. Effective August 1, 2013, N.C.G.S. 14-313 adds the e-cigarette to the list of tobacco derived products that are banned for those under 18 years old. I KNOW they are targeted to the youth market with the flavored vapors etc. but now they are illegal. E-cigarettes are only slightly cooler than the candy cigarettes that we played with as kids back, way back…in the day. But those did not infuse your body with nicotine.


Reprieve from possessing a needle

N.C.G.S. 90-113.22 provides that if an officer asks you if you have a hypodermic needle or other sharp object which could cut or puncture the officer before a search and you admit that you do, you will not be cited for possession of drug paraphernalia (for this object). This law takes effect 12/1/13 and is based upon officer’s safety issues. It applies to a search of one’s person or vehicle.


New Legistlation

If you are under 21, have consumed alcohol and see a dangerously intoxicated person, do not hesitate to call 911 to get immediate medical assistance for this person. A new law will protect you from being arrested for being a minor possessing or consuming alcohol. N.C.G.S. 18B-­‐302.2 provides that a minor shall not be prosecuted for possession or consumption of alcohol if the only reason the police become aware of the alcohol is if that person is seeking medical assistance for another person. You must believe you are the first to call for medical assistance, use your true name and remain with that person until help arrives. So be the good Samaritan; you will not be punished.


University Discipline Protocol

I am reprinting an excellent article from Texas attorney, Stephen Gustitus. In NC, we have so many universities and many disciplinary procedures.

University Discipline . . . The Illusion of Due Process

Thousands of students face campus discipline courts each year at both public and private universities. Penalties range from letters of reprimand to suspension or expulsion from school. For students with related criminal charges the campus disciplinary process carries added risk. The unwary student, without legal counsel, runs the risk of incriminating themselves by speaking freely with campus hearing officers. Beyond this, cases considered improvable by state prosecutors are routinely pursued by these campus courts . . . often with devastating results. This article details the issues involved in defending students accused of violating campus conduct codes. Note each institution has its own rules and procedures for student disciplinary matters. The attorney who serves as advisor must be familiar with both trial level procedures and those established for campus appeals. My experience is largely with Texas A&M University so I will use their system as a template for our discussion.

Students facing disciplinary action are entitled to a minimum level of constitutional due process, especially those attending public universities. This due process includes the right to have their case heard under established procedures, the right to receive notice of the charges, the right to hear a description of the evidence, and the right to present favorable evidence to an impartial fact-finder. See Goss v. Lopez, 419 U.S. 565 (1975). However, the rights we have come to rely upon in criminal court, like the right to confront one’s accuser, are noticeably absent from this established due process. The burden of proof is by a preponderance of evidence and the Rules of Evidence do not apply. In fact, hearsay is the standard by which the University typically meets their burden of proof. (We once defended a student where the University’s principle source of evidence was a newspaper article from The Bryan Eagle) Significantly, the student is not entitled to an advisor who is also a licensed attorney. If criminal charges are not pending the advisor cannot be an attorney. If an attorney does serve as advisor they are not permitted to “represent” the accused student. Rather, the advisor assists the student in presenting their case pro se. A very cumbersome system, to say the least. A qualified attorney can serve as advisor in appropriate cases.

One devastating aspect of the University discipline system is the “paper trail” it creates. This trail can follow a student into criminal court and beyond. The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a federal law protecting the privacy of student education records. FERPA also gives parents certain rights with respect to their child’s education records. Generally, schools must have written permission from the parent or student to release any information from the student’s education record. However, FERPA allows schools to disclose those records (the paper trail) without consent to the following parties or under the following conditions (34 CFR § 99.31): (1) School officials with legitimate educational interest; (2) Other schools to which a student is transferring; (3) Specified officials for audit or evaluation purposes; (4) Appropriate parties in connection with financial aid to a student; (5) Organizations conducting certain studies for or on behalf of the school; (6) Accrediting organizations; (7) To comply with a judicial order or lawfully issued subpoena; (8) Appropriate officials in cases of health and safety emergencies; and (9) State and local authorities within a juvenile justice system, pursuant to specific state law.

The Charges

The first time a student learns they are subject to university discipline is upon receipt of the “charge letter” from Student Conflict Resolution Services. This letter propounds the alleged violations of the Student Conduct Code (SCC). The SCC is analogous to our penal code. If the student is also a member of the University Corp of Cadets the charge letter may contain alleged violations of “The Standard.” The charge letter first details the code section(s) allegedly violated. Then the factual allegation supporting the violation is described. The SCC is profoundly broader and more ambiguous than penal laws to which we are accustomed. For example, Section 24.4.4 of the SCC prohibits THEFT as follows: “Unauthorized removal or stealing and/or attempted removal or stealing of property of a member of the University community or other personal or public property, on or off campus.” Note a culpable mental state is conspicuously absent. You will not find one in the University charge letter either. In fact, the University is not required to prove any intent before finding a student responsible for theft under the Student Conduct Code. In several disciplinary hearings we have defended our client would have prevailed had the University been required to prove knowledge or intent. Additionally, we have found the University tends to interpret code sections very broadly and adversely to the accused student.

One deceptive feature of the charge letter is its invitation for the accused to incriminate themselves during the disciplinary hearing (Student Life Conduct Conference). In each Texas A&M charge letter the student finds the following invitation: “The purpose of the Student Life Conduct Conference is to allow you to present your perspective of the events which led to the charges listed above and to determine what action, if any, will be taken in reference to these charges by the University.” A similar offer is presented when the student attends the actual hearing. If the student faces potential criminal charges stemming from the University allegations, encouraging the student to “present their perspective” is an opportunity for self-incrimination. Since FERPA does not protect student files from “judicial orders or lawfully issued subpoenas,” the uninformed student may spend hours incriminating themselves. Our local district attorney has never hesitated to issue a subpoena and obtain these records. Lastly, the student must respond to allegations in the charge letter. Failing to respond is a violation of the Student Conduct Code, as well.

Prior to a Student Life Conduct Conference we do not hesitate to discuss evidentiary matters with the hearing officer. Rather than get surprised when evidence is not admitted, we discuss questionable issues before hand. Our discussion provides an opportunity to champion our client’s position and provides the hearing officer some time to sleep on evidentiary matters.

The Hearing

Hearings are either informal or formal. Informal hearings are one-on-one meetings with a hearing officer. They do not involve potential suspension/expulsion of the student. Informal hearings are typically not recorded. Formal hearings, conversely, are recorded and consist of a three (3) person panel of fact-finders, a panel chair (judge), and a student conduct administrator (prosecutor). The student risks separation from the University during formal hearings. Prior to the start of each conference the student is required to accept, or not accept, responsibility for each allegation listed in the charge letter. This “plea” is recorded in writing inside the student’s file.

Again, the Rules of Evidence do not apply to the conference process. In fact, hearsay is the evidence most likely encountered at a University disciplinary hearing. Furthermore, there is no right to confrontation even when possible separation is a sanction. The Roles and Responsibilities of Panel Conference Participants published by the University states: “An alleged complainant may be interviewed during the investigation process and may provide written statements regarding the alleged conduct. An alleged complainant is not required to be present during the panel process.” (Emphasis added) Of equal concern is the lack of opportunity to compel witnesses to attend hearings and testify. If a witness does not wish to appear, they do not appear and no mechanism exists to compel their testimony.

Remarkably, there is no “voir dire” of the fact-finding panel who decides responsibility and sanctions. In other words, there is no vehicle through which to inquire about potential bias of the persons about to forever affect the student’s life. Identifying bias is simply impossible in this system. In fact, our experience reveals the fact-finders are often quite biased in favor of the University. All are employed by the University and have an inherent interest in protecting the University community. Similarly, in Corp of Cadet matters there is a military advisor from the Corp who serves as a fact-finder. The officer’s duty is to protect the Corp of Cadets and this inherent bias is often reflected in decisions we have seen. It’s profoundly unfair to the accused student.

Lastly, even though the accused student is afforded the right to silence, in formal hearings students are repeatedly asked questions and are forced to continually invoke their right. It makes them look guilty as hell. Equally abhorrent is the potential a student’s silence will be used against them. Section 26.1.4 of the Student Conduct Proceedings published by the University states: “There will be no finding of responsibility solely because a student remains silent during a student conduct conference.” (Emphasis added) On the rule’s face a student’s silence can be used as evidence of responsibility. You can see this on panel member’s faces after the student was compelled to invoke their right to silence over and over again during the hearing process.

The Punishment

One or more sanctions may be imposed for any single Student Conduct Code violation. The most serious sanctions are separation from the University via suspension or expulsion. Lower level sanctions may include the rare letter of reprimand. More common is conduct review or conduct probation. Conduct probation at Texas A&M University removes the student from good standing and prohibits them from: (1) holding office in a University organization; and (2) representing the University in any official capacity. The student on conduct probation is also ineligible to receive a University administered scholarship. A full understanding of possible sanctions involves an in-depth study of published University materials on this subject.

The Appeal

The appeal process is limited in scope. The same bias towards “finality” we are accustomed to in criminal appeals is evident in the University disciplinary appeal process. The appealing student must complete an appeal request form within five (5) University business days of the decision regarding disciplinary action. The following are the only accepted bases for appeal: (1) Failure to adhere to the published guidelines regarding the fairness of the hearing process in light of the charges and evidence presented; (2) Whether a sanction imposed was appropriate for the violation of the Student Conduct Code for which the student was found responsible; and (3) To consider new information, not available at the time of the original conference, sufficient to alter the hearing decision. Again, the appeal process is intended to be informal and “need not comply with the formal processes associated with the criminal and civil courts.” Section 58.4 published in the University Disciplinary Appeals Panel. The appeal process is not intended as a de novo appeal, but sometimes works out like one. Also, the University may rule on the appeal without a hearing if it determines the stated grounds are meritless.

Conclusion

The due process afforded students in University disciplinary hearings is a far cry from what we are accustomed when defending citizens in the criminal justice system. The University frowns upon us comparing their system to the criminal and civil courts even though the long-term consequences of being found responsible for violating the SCC are profound. Further, the University’s stated policy behind the disciplinary process emphasizes the “educational” value to the student. The Student Conduct Code Procedures published by the University states: “The University views the student conduct system as an educational experience that can result in growth in personal understanding of one’s responsibilities and privileges in the University community.” This educational value may be true in some cases, but the punitive consequences to the student can be as profound as any criminal court sentence. This is especially true in more serious cases where responsibility for sexual abuse, violence, or weapons is determined.