Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it? Readers of this blog are probably familiar with the general mechanics of a conditional discharge under G.S. 90-96(a). The law applies to eligible defendants (those with no prior felony convictions or misdemeanor drug or drug paraphernalia convictions) convicted of a qualifying offense (any misdemeanor or felony drug possession crime or a drug paraphernalia offense under G.S. 90-113.22 or, as of July 12, 2017, G.S. 90-113.22A). Defendants granted a conditional discharge are placed on probation without the court actually entering judgment in the case. If the defendant violates probation, the court can—after a probation violation hearing—enter an…
Is G.S. 90-96(a) Mandatory or Discretionary?
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Driving Drunk….in Your Own Driveway?
In the latest news from the front lines of the "War on Drunk Driving"…. Suspected Drunken Driver Can Be Busted in Own Driveway Detroit, MI. July 25 – The Michigan Supreme Court says a driveway is no refuge for a drunken driver. The court says Northville authorities could charge Gino Rea with drunken driving, even if his car never left the driveway. The court says a driveway is “generally accessible to motor vehicles” under state law, even if on private property. Police went to Rea’s home three times one day in 2014 to respond to noise complaints. At one point, an officer saw him drive out of the garage and pull back in. His blood-alcohol level was three times the legal limit. The next thing you know they’ll be arresting people for DUI on bicycles and wheelchairs. Oh, right, they’re already doing that. See, for example, Felony Bicycle DUI and DUI in a Wheelchair.
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Prescription Drug OUI in Massachusetts
In a 2017 Massachusetts appellate case, the defendant appealed from convictions for operating a vehicle under the influence of drugs (M.G. L. c. 90, § 24(1)(a)(1)) and negligent operation of a motor vehicle (M.G. L. c. 90, § 24(2)(a)). The case arose when a cop in an unmarked car saw the defendant drift over the centerline and travel toward him head-on. The cop swerved to avoid crashing into the defendant, and then he pulled her over. The cop, who’d known her for a minimum of 23 years, observed she “wasn’t right” but was sleepy, lethargic, and disheveled with a low attention span and a physical unsteadiness. A different cop grabbed her hand to stop her from falling while she was performing the nine-step walk and turn test and the one-leg stand. The defendant said she’d taken Sertraline, Symbicort, Albuterol, Spiriva, Singulair, Prozac, Dextral, and Paxil on that day. The officer asked to see her prescriptions, and she only produced…
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Senate's Midnight Vote on Health Care: Another Republican Fail
Update: 1:35 a.m.: Republicans fail to repeal Obamacare and pass its "Skinny Repeal" bill. Sens. McCain, Murkowski and Collins voted against the Republican bill, making the final tally 49 (yes) to 51 (no). I rarely quote a Donald Trump tweet... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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Can My Assault Case be Sealed or Can my Assault Conviction be Expunged: Sealing Provisions of NY Crim. Pro. Law 160.59
Nobody likes an answer of “maybe,” but the practical reality to the question of whether a conviction or criminal record for Assault in New York can be sealed is partially yes and partially no. First, with the negative, New York has no provision in its criminal procedure law to expunge your conviction for any degree of Assault. However, there is a remedy for anyone convicted of a non-violent Assault (that’s right, non-violent) to seek a sealing of their criminal conviction from their public criminal record. Doesn’t make sense? Bare with me. Assuming that you have no more than two misdemeanor convictions or one misdemeanor and one felony, the judge before whom you were sentence has the authority pursuant to New York Criminal Procedure Law 160.59 to seal your criminal conviction subject to a few relevant and critical points as to eligibility. Before jumping into the general provisions of Crim. Pro. Law 160.59, crimes defined as violent offenses are not…
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News Roundup
The Associated Press reports that the investigation into the Word of Faith Fellowship congregation in Spindale is expanding into questions of whether church members enticed Brazilians to come to North Carolina and then forced them to work without pay. As is alleged to be the case with other church members, Brazilian former members of the church reportedly have told investigators that, in addition to being forced to work, they were subjected to physical and emotional abuse as a method of religious practice. Keep reading for more news. Manhunt Ends. A six-day multicounty manhunt in Western North Carolina concluded early yesterday morning with the arrest of Phillip Michael Stroupe, II, in McDowell County. After stealing a bike at gunpoint on Saturday, Stroupe eluded authorities and caused the Pisgah National Forest to be closed for four days while the search was ongoing. Stroupe was discovered in a truck belonging to a Mills River man, Tommy Bryson,…
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Texas completes second US execution in as many days
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Just Confidentiality
William H. Simon, Attorney-Client Confidentiality, Geo. J. Legal Ethics (forthcoming, 2017), available at SSRN. Eli Wald In a concise and elegant essay, titled Attorney-Client Confidentiality: A Critical Analysis, William H. Simon offers a compelling justice-based critique of the doctrine of confidentiality. Defined broadly to encompass all “information related to the representation” of a client, the traditional doctrine, dubbed by Simon “strong” confidentiality (p. 1), forbids disclosure unless narrow exceptions apply (see Rule 1.6). Challenging both the expanse of the doctrine and its categorical posture, Simon instead advances what he calls “moderate confidentiality”—a duty that would “mandate preservation of confidentiality except where disclosure is clearly necessary to avert substantial injustice.” As Simon explains: The moderate duty is sensitive to context and demands complex judgment on the part of…
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Congress’ Sexual Preference
It doesn’t. It never did. It should, but you wouldn’t know that unless you were one of the few people who paid attention to things like law before evil descended on the land. The headline could just have easily read, Generalissimo Francisco Franco is still dead. The Justice Department has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under President Barack Obama. This would be outrageous, but for one thing. Title VII of the Civil Rights Act of 1964 does not include homosexuality as a protected class, and Congress has voted annually since 1974 not to amend it to do so. On the bright side, if they had, it would have been characterized as “sexual preference,” as the nation was not yet woke to the belief that sexual orientation was an immutable characteristic. The cry is that Darth Cheeto’s beleaguered minion is…
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Will Chicago Ever be a Sanctuary City? Immigration Law in Practice
The law on sanctuary cities has been at the heart of Chicago politics for some time now. Sanctuary cities are hated by conservative government officials precisely because they threaten one of the cornerstones of federal immigration policy. For example, if the federal government enacts a tough stance on illegal immigrants by denying them certain services, the sanctuary city will find a public interest in offering those services of their own volition. As a consequence, the sanctuary cities have sometimes been accused of breaking the law or alternatively encouraging others to break the law. The new Trump administration has issued an executive order that is designed to pressurize sanctuary cities into fully complying with federal law on immigration matters. The Immigration Advocates Join the Fray Now that the positions have been set and are diametrically opposed, the only thing for it is conflict. That conflict will take the form of penalties on cities that refuse to enforce the…
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When the DNA Says “Way”
Gabriel Cornejo has sex with a woman. It cost him more than a dinner. In 2003, a child support court in Texas ruled that Gabriel Cornejo, 45, had to pay child support to his ex-girlfriend who had recently given birth because she vowed that there was no way he wasn’t the rightful dad. And they want the $65,000 in back child support he owes, which hardly seems unreasonable. After all, you do the crime, you do the time, fatherhood edition. But the unnamed woman’s vow “that there was no way he wasn’t the rightful dad” may be deeply persuasive if one believes the survivor, except for this stuff called DNA. Cornejo, a father who’s raising his own three kids and two nephews, said he found out about the child support payments when a deputy showed up at his door last year. The deputy gave Cornejo court papers that claimed the state of Texas thinks he has another child. The child, a teenaged girl, is daughter of his ex-girlfriend, who he broke up with…
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Ormerod & Trautman on Third-Party Doctrine in the Digital Age
Peter C. Ormerod and Lawrence J. Trautman (Western Carolina University and Western Carolina University) have posted A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age on SSRN. Here is the abstract: There are few...
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The Chickenshit Club: Why Americans Sense the Government has Forgotten Them
During the aftermath of the financial crisis of 2008-2009 millions of Americans lost their homes, jobs and life savings. As regular Americans suffered, the federal government spent arguably in excess of a trillion taxpayer dollars propping up the financial industry. In 2016, Bernie Sanders campaign was fueled as he railed against the excesses of “Wall […]
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Why I-285 in Georgia is One of the Nation’s Most Deadly Roads
Georgia has some dangerous roads, none more so than I-285 which has the dubious distinction of being the deadliest interstate in the nation according to some surveys. The Atlanta Journal Constitution noted there were 2,867 fatal accidents on major American interstates in 2013, according figures from the National Highway Traffic Association. I-285 circles Atlanta. The study found the stretch of just under 75 miles recorded 26 fatal accidents in the year of study and 29 deaths, giving it a rate of 3.5 fatal accidents per 10 miles. Most of the deadliest interstates were in the southern states with Texas, Florida, and California dominating the list. The I-285 around Atlanta is one of the nation’s most dangerous roads The study in Vox found auto accidents killed 32,719 people in America in 2013, about 90 people every day. Stretches of road like I-285 were considerably more dangerous than other interstates. The AJC noted particularly characteristics of the Atlanta…
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FL3: Tossing object in flight from car after stop was abandonment
The officer encountered defendant passenger sitting in a car in a no parking zone and directed him out of the car because of a fear of weapons. Defendant got out and ran, discarding an object as he ran. That was … Continue reading →
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Airplane Passengers Removed From Flight After Child Kicks Seat
The airline JetBlue is currently fighting a depiction of an episode that lead to a family's removal from a flight. JetBlue is considering banning the family from flying with the airline. Tamir Raanan and Mandy Ifrah said they were trying to fly back home to New York from Fort Lauderdale, Florida with their three children. Then their one year old started kicking the seat in front of them as the plane was preparing to depart. In a press release from their attorney, it says that Ifrah and the female passenger in the seat exchanged some words, and then the lady moved to an empty seat beside her. The family says that they apologized, but the flight attendant asked the pilot to return to the gate to remove the family from the flight.After the family was removed from the flight, they were given a refund and were able to book another flight for the following day. However, their luggage was already on the JetBlue plane and wasn't returned to them until a week later. The…
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The Scrap Materials, Hearsay and Dealing in Stolen Property
This post examines a recent decision from the District Court of Appeals of Florida – Second District: North v. State, 2017 WL 2484944. The court begins by explaining that Shane North was “convicted in the Circuit Court, Polk County . . . of dealing in stolen property and he appealed. North v. State, supra.The Court of Appeals goes on to explain thatMr. North was a foreman involved in a dismantling project for a shuttered power plant, a job which entailed removing copper cables, electrical bus bars, rectifiers, and batteries—materials that, even when scrapped, apparently hold significant resale value. His company's policy prohibited employees from taking or selling these decommissioned materials; instead, a designated scrap vendor was supposed to remove the materials from the job site. When Mr. North's company truck's GPS tracking device indicated that his truck had traveled to a metal recycling facility during working hours,…
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Maldives: Halt first execution in more than 60 years
Source: Amnesty International (20 July 2017)https://www.amnesty.org/en/latest/news/2017/07/maldives-halt-first-execution-in-more-than-60-years/The Maldives must immediately halt its first execution planned in more than sixty years and preserve its positive death penalty record, Amnesty International said today.The human rights organization has learned that three men, whose death sentences were made final by the Supreme Court in 2016, are now at risk of imminent execution as reports emerged that the authorities have been preparing to implement death sentences. The number and names of the prisoners involved have not been disclosed.“The Maldives authorities must immediately halt plans to carry out any executions and establish an official moratorium on the implementation of the death penalty as a first step towards its full abolition. By sending these men to the gallows, the country will do irreparable damage to its reputation,” said David Griffiths, Amnesty…
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Iranian Deputies Push To Abolish Execution For Drug-Related Offenses
Source: Radio Free Europe (23 July 2017)https://www.rferl.org/a/iranian-lawmakers-push-abolish-death-penalty-drug-related-offenses/28633643.htmlIranian lawmakers have proposed changes to the country’s tough antidrugs laws, a move that could abolish the death penalty for some drug-related crimes.If approved by parliament, a proposed amendment could curb the number of executions in the Islamic republic, which has one of the highest rates of capital punishment in the world.Iran has been under mounting international pressure to curb its number of executions. Human rights groups say Iran executed at least 567 people in 2016 and nearly 1,000 in 2015, including men from Afghanistan, where the majority of illicit drugs come into Iran. Iranian officials say 70 percent of all executions in the country were for drug-related offenses.In Iran itself, calls have been made to ease the use of capital punishment for drug-related offenses. Critics say the extensive use of the death penalty…
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Media Coverage of Republican Health Care Fail
Most mistakes in one article I've seen yet on the health care vote: NBC News. I suspect it will be gone by morning, so I printed and uploaded it. How did they even release it? It seems like it was written before the vote by someone who was... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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