Category: New Legislation

According to the National Center for Health Statistics at the Center for Disease Control and Prevention, more than 70,200 Americans died from drug overdoses in 2017, which represented a two-fold increase in a decade. The sharpest increase occurred among deaths related to fentanyl and fentanyl analogs (other synthetic narcotics) with more than 28,400 overdose deaths.1

“Death by distribution” is the title of the new class C felony offense in North Carolina which holds sellers of illicit controlled substances criminally liable for any resulting deaths caused by the controlled substances. (G.S. 14-18.4(b))

“Malice” or the intent to do injury to another party is not required. So any illegal sale of a controlled substance which is the proximate cause of death can be prosecuted under this statute. This would include accidental overdoses as well as deaths resulting from toxic cutting agents.

The controlled substances include opiates, cocaine or methamphetamine and also “depressants.” The illegal sale of benzodiazepines such as Klonopin and Ativan, fall within the list of banned prescription controlled substances.

Class C felonies are punishable by a minimum of 44-182 months of incarceration. If the dealer has a prior narcotic conviction for sale, possession for sale or trafficking, then aggravated penalty of 94-393 months as a Class B-2 felony applies.

A person commits this offense if the following elements are satisfied:
• The person unlawfully sells at least one “certain controlled substance;”
• The ingestion of the certain controlled substance or substances causes the death of the user;
• The sale of the certain controlled substance is the proximate cause of the victim’s death; and
• The person did not act with malice.

A “certain controlled substance” is any of the following:
• Any opium, opiate, or opioid;
• Any synthetic or natural salt, compound, derivative, or preparation of opium, opiate, or opioid;
• Cocaine or any other substance described in G.S. 90-90(1)(d);
• Methamphetamine;
• A depressant described in G.S.90-92(a)(1); or
• A mixture of one or more of these substances. (G.S. 14-18.4(b))

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1. 47,600 deaths were due to opioids including prescription opioids (and methadone), heroin and other synthetic narcotics (mainly fentanyl).
17,029 deaths were due to prescription opioids in combination with synthetic narcotics (mainly fentanyl)
15,482 deaths involved heroin alone and in combination with other synthetic narcotics (mainly fentanyl) and without other synthetic narcotics.
10,333 deaths involved methamphetamine and other psychostimulants.
13,942 deaths involved cocaine and any opioid, cocaine without any opioid, and cocaine and other synthetic narcotics.
11,537 deaths were due to benzodiazepines and any opioid, benzodiazepines without any opioid, and benzodiazepines and other synthetic narcotics.

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.

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.

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]

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)

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.

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.

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.