North Carolina’s criminal law and practice witnesses a number of developments in 2012 that changed the way criminal defense law is practiced in the state and in Wake County. Some of these changes were passed and technically went into effect in December 2011, but their real effect was in 2012.
Below is an overview of key developments, both from a statutory and case law perspective, but also from a practice perspective.
1. Enhanced DWI Punishments. North Carolina already had pretty punitive Driving While Impaired statutes, but legislation that went into effect in December 2011 dramatically changed the way certain DWIs are prosecuted in North Carolina. These changes included the addition of a sentencing level (Aggravated Level One) chiefly aimed at repeat offenders, an increase in fines and fees (including the addition of a $100 DWI administrative fee), and the raising of the age of someone who is considered a minor in the car.
The raising of the minor’s age from 16 to 18 meant that even certain teenagers who get caught driving while impaired may face between 30 days and two years in jail simply because there is another teenager in the car under the age of 18.
This change has dramatically affected the way these DWIs are handled, raising the stakes for very young drivers who have friends in the car and may be driving under the influence.
2. The Re-Introduction of Parole – Other changes that went into effect in late 2011 changed the way people are punished for felonies. Parole had largely been eliminated in 1994 by North Carolina’s move to Structured Sentencing. But the Justice Reinvestment Act of 2011 added Post-Supervision Release (also known as parole) of 9 months (for non-sex-related offenses) to many felonies. These changes mean that even after people come out of prison, they will be supervised in many cases for at least 9 months.
3. Changes to Probation – The Justice Reinvestment Act of 2011 also introduced significant changes to probation. First, probation officers have much more control in terms of adding new conditions to probation without the court’s explicit authority. Second, intensive probation was eliminated. Third, probation is no longer tolled once someone is charged with a new criminal offense. The elimination of tolling only affects people placed on probation after December 1, 2011.
4. Elimination of the Intermediate Sanction – Structured Sentencing includes three punishment types. An active prison sentence. A community sentence (probation, fines), and an Intermediate sanction which, in the past, meant the defendant was sentenced to probation plus some additional intermediate sanction (a split sentence, drug court, intensive probation, etc.). The Justice Reinvestment Act eliminated a clear distinction between community sentence and an intermediate sanction. Effectively, the only requirement of an intermediate sanction is that the person be placed on supervised probation.
5. Wake County Courthouse – The courthouse lost a wonderful judge. An attorney was convicted of felonies related to DWI cases in Wake County.
6. Enhancements to Felony DWI Laws – Largely owing to perceived leniency in high profile DWI cases, the North Carolina General Assembly increased the punishments associated with DWI offenses involving serious injury or death. In the past, District Attorneys would charge DWI repeat offenders whose conducted resulted in a death with second degree murder. The legislature has eliminated that requirement by effectively imposing lengthy active prison sentencesfor someone convicted of an impaired driving offense who has previously been convicted of an impaired driving offense and whose conduct results in the death of another person.
7. Confrontation Clause Jurisprudence – The Supreme Court has continued to refine the Sixth Amendment’s Confrontation Clause case law since the landmark Crawford v. Washington in 2004. In 2011, the Supreme Court handed down Bullcoming v. New Mexico in a DWI case involving the testimony by a substitute expert. Substitute experts – that is to say, analysts who did not perform any of the testing on the original chemical sample – are not permitted to testify as to the results of the sample. In Williams v. Illinois, 132 S.Ct. 2221 (2012), the Supreme Court held that because an expert’s statement about a report regarding the DNA in a swab taken from a victim. The Supreme Court held that because the expert’s statement was not offered for the truth of the matter, but merely as a hypothetical, the expert’s statement did not implicate the confrontation clause.
8. Regulation of Guns – The events of the past month in Connecticut have affected the national debate over gun control, and will likely lead to new legislation in 2013 regarding the sale of high capacity clips, of certain kinds of weapons, and an increase in background checks and other formalities designed to ensure that people with mental health issues do not acquire firearms.