2011 Sausage Report Part Two Legal Question of the Week Vol. 4, Number 15 August 12, 2011

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1 2011 Sausage Report Part Two Legal Question of the Week Vol. 4, Number 15 August 12, 2011 Brian Beasley Tired of Reading These New Laws and Legal Adviser, HPPD Laws are like sausages. It is better not to see them being made. -- German Chancellor Otto von Bismarck Welcome to part two of our look at the new laws passed this year by the General Assembly. Today we are going to look at drugs, crimes of violence, and a collection of other laws that should be of particular interest to law enforcement officers. Before we do, though, the answer to the question that has been weighing on everyone s mind since the last legal update: What did the General Assembly designate as the official state sport of the great state of North Carolina? State Sport New G.S states that the official sport of North Carolina is... (drum roll)... stock car racing. 1 Now that that lingering plotline has been resolved, let s get into the rest of this new legislation, starting with drug offenses. Drug Laws 1. New Controlled Substances: Effective June 1, 2011, several new substances were added to the controlled substance schedule lists. I covered these in house with an back then, but here s a quick recap: There are three 2 new controlled substances: Mephedrone 3 and MDPV 4 are now Schedule I and Synthetic Cannabinoids 5 are now Schedule VI. Possession of a Schedule 1 In deference to the respect due to our distinguished legislators, I try (with varying degrees of success) not to criticize them in these legal updates by inserting my own personal opinions about their work. But, come on, really?! Stock car racing? Basketball should have won this vote hands down. At the risk of being labeled a heretic, I say this: Michael Jordan could have driven the 43 car (with some obvious modifications to allow him to fit into it) and had some success if he so desired, but there is no way Richard Petty was ever going to dunk a basketball. Come on, man.

2 I controlled substances remains a Class I felony, but possession of 1 gram or less of MDPV is only a Class 1 misdemeanor. Possession of synthetic cannabinoids (or any mixture containing that substance) is punishable as a Class I felony if more than 21 grams, a Class 1 misdemeanor if between 7 and 21 grams, and a Class 3 misdemeanor if 7 grams or less. Sale of synthetic cannabinoids is now a Class H felony. The manufacture, delivery, or possession with intent to manufacture, sell, or deliver synthetic cannabinoids is a Class I felony but the transfer of less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance for no remuneration shall not constitute a delivery in violation of G.S (a)(1) according to the statute. In addition, there are new trafficking offenses for these substances as set out below: Trafficking in MDPV or mephedrone For 28 or more and less than 200 grams, a Class F felony with a mandatory prison term of 70 to 84 months and a minimum $50,000 fine For 200 or more and less than 400 grams, a Class E felony with a mandatory prison term of 90 to 117 months and a minimum $100,000 fine For 400 grams or more, a Class C felony with a mandatory prison term of 225 to 279 months and a minimum $250,000 fine. Trafficking in synthetic cannabinoids For more than 50 and less than 250 dosage units, 6 a Class H felony with a mandatory prison term of 25 to 30 months and a minimum $5,000 fine For 250 or more and less than 1250 dosage units, a Class G felony with a mandatory prison term of 35 to 42 months and a minimum $25,000 fine For 1250 or more dosage units and less than 3750 dosage units, a Class F felony with a mandatory prison term of 70 to 84 months and a minimum $50,000 fine For more than 3750 dosage units, a Class D felony with a mandatory prison term of 175 to 219 months and a minimum $200,000 fine. 2 There are actually four, but the fourth requires a chemistry degree to talk about. Any compound, other than buproprion, that is structurally derived from 2-amino-1-phenyl-1 propanone by modification in one of several ways specified in the statute is a Schedule I controlled substance. 3 Mephedrone is (or at least, was) commonly found labeled as plant food or bath salts. I m going to come right out and say that I think it is a bad idea to take a bath in any substance that doubles as plant food. 4 MDPV is short for Methylenedioxypyrovalerone. Use that word the next time you playing Hangman. You ll win I guarantee it. This substance was also sold as bath salts under a variety of different names. 5 These are the designer made drugs that mimic the effects of cannabis. These drugs were marketed as herbal incense or herbal smoking blends and the most well-known brands were K2 and Spice. To be illegal under our state law, the product must contain one of the specified ingredients in G.S (3). People will apparently go to great lengths to invent substances that will give a short feeling of euphoria while causing devastating side effects. If only they would use those powers for good. 6 A dosage unit is defined as three grams of the substance or any mixture of the substance.

3 2. Sale of Pseudoephedrine In 2005, the legislature set limits on how much pseudoephedrine a person could purchase in a day or month. Pseudoephedrine is a precursor chemical used to make methamphetamine 7 and G.S limits a person from purchasing more than 3.6 grams a day and more than 9 grams within any 30 days. New G.S A requires retailers to enter some required information into a national database called the National Precursor Log Exchange. This system will keep track of how much pseudoephedrine the person has purchased and will generate a stop alert if the allowable quantities are about to be exceeded. If a stop alert is generated, it is unlawful for the sale to be made. For retailers who make such a sale or do not enter the information into the NPLEx 8 system (subject to some exceptions), the first offense is a Class A1 misdemeanor and a second or subsequent offense is a Class I felony. After conviction of a third offense, the retailer will be prohibited from selling any pseudoephedrine products. An employee or purchaser may also be charged with violating this law. For them, the first offense is a Class 1 misdemeanor, the second offense is a Class A1 misdemeanor, and a third or subsequent offense is a Class I felony. This section is effective January 1, Identification Required For Purchase of Certain Controlled Substances Effective March 1, 2012, pharmacies will be required to see valid government issued photo identification (license, state id card, military id, or passport) from a purchaser before dispensing a Schedule II controlled substance or certain Schedule III controlled substances. 9 The pharmacist will have to document the name and identification number of the purchaser as well as the type of identification presented and keep this record for three years. These records will be available to those who may access prescription information, including the SBI, if related to a specific active investigation. This law does not require that the person picking up the prescription (and showing the identification) be the person to whom the medicine was prescribed. In other words, you can still pick up Grandma s pills for her. 1. Intimidating A Witness: Violent Crime Laws Effective December 1, 2011, the crime of Intimidating a Witness under G.S (a) will be a Class G felony instead of a Class H. 7 In addition to being another good Hangman word, pseudoephedrine is a nasal decongestant found in a lot of cold medicines. The cooking of methamphetamine is another example of the lengths people will go for a temporary high. 8 Acronyms that mix capital and lowercase letters are SO twenty-first century, thanks to Steve Jobs, creator of iphone, ipad, and well i-everything. 9 The Schedule III substances included here are listed in G.S (d) and generally includes medicines containing codeine, dihyrdrocodeinone, ethylmorphine, opium, or morphine.

4 2. Disturbing/Desecrating Human Remains: This law creates several new crimes in G.S effective December 1, They are: willfully disturbing, vandalizing, or desecrating human remains by any means, including any physical alteration or manipulation of the remains. (Class I felony) willfully committing or attempting to commit on any human remains any act of sexual penetration (Class I felony) 10 attempting to conceal evidence of the death of another by knowingly and willfully dismembering or destroying human remains (Class H felony, but if the person knows or has reason to know the deceased did not die of natural causes it is a Class D felony) The law creates exceptions to the first two above for medical practices, funeral director/embalmer actions, or scientific research. 3. Videotaping Custodial Interrogations As you know, current G.S. 15A-211 requires an electronic (either audio or video) recording to be made of any custodial interrogation conducted at a place of detention in a homicide investigation. Effective December 1, 2011, the statute has been amended to state that whenever reasonably feasible both an audio and video recording must be made. More importantly, the situations where this recording requirement applies have expanded. You must now record every custodial interrogation conducted at a place of detention for the following: Any Class A, B1, or B2 felony Any Class C Rape or Sex Offense Any Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury Any custodial interrogation of a juvenile 11 conducted at a place of detention. 4. The Castle Doctrine and Changes to Gun Laws This is another area that I m going to have to discuss in a later legal update. 12 originally had included it here, but this update was turning into an epic novel (and a I 10 This is called necrophilia and apparently it was legal until this year. The Moche civilization of Peru thought that this was a way of communicating with the dead. And we get upset when telemarketers call. 11 Juvenile is not defined in this law. It could be interpreted to mean less than 16 years old, but the safest way to define it is a person less than 18 years old. That s how the term is defined in 7B-101(14). So starting December 1, 2011, if you are doing a custodial interrogation of a person less than 18 years old at a place of detention (which includes the police department), you must record it. 12 You are probably tired of hearing that, but this gun stuff was taking up about two and a half pages all by itself and I still wasn t really giving as much detail as I needed. Plus, if I make this a 10-page legal update, half of you aren t going to read the whole thing and the other half aren t going to remember any of it.

5 boring one at that.) The very general overview is that the legislature put into statute form much of the law of self-defense, and broadened considerably the places where some folks can carry concealed weapons. Laws Important to Law Enforcement Officers 1. Assault on Law Enforcement Officer Causing Physical Injury Effective December 1, 2011, new G.S (c) makes it a Class I felony to assault and cause physical injury to a law enforcement officer or employee of a detention facility discharging or attempting to discharge their official duties. Physical injury is defined as including cuts, scrapes, bruises, or other physical injury which does not constitute serious injury. 13 Obviously, if a more serious assault charge applies (such as assault with a firearm on a law enforcement officer) you should charge that crime rather than this one. Also, you still have the option of charging the misdemeanor Assault on a Government Officer (G.S (c)(4)). This bill also amended G.S to make assaulting and causing physical injury to a firefighter, EMT, medical responder or emergency department personnel a Class I felony and if serious injury is inflicted or a deadly weapon other than a firearm is used, it is now a Class H felony. 2. Warrantless Arrest for Violation of Pre-trial Release Order Current law allows officers to make a warrantless arrest for violations of conditions of pre-trial release issued in domestic violence cases. Effective December 1, 2011, officers may now make a warrantless arrest for violations of pre-trial release conditions in any type of case and may do so whether it happened in or outside of the officer s presence. This should be a useful tool for you. Let s say that you know that suspect Johnny is out on a $1,000 bond for a charge of assault. You also know (because you ve called the clerk s office and checked) that one of the conditions of Johnny s bond is that he have no contact with Sam, a frequent companion in his criminal activity. If you develop probable cause that Johnny has had contact with Sam in violation of this condition, you may arrest Johnny and bring him before a magistrate. This would not be a new criminal charge, but the magistrate would then decide whether to revoke or modify Johnny s bond or change the conditions of his pre-trial release. 14 Whether you agree or disagree with what the legislature did, no one can say that they didn t do a lot of work this year. 13 Hurt feelings or wounded pride are NOT included in this definition. 14 It used to take forever to accomplish this result. If it was believed that Johnny had violated the terms of his pre-trial release, the district attorney s office had to be notified and then they had to notify the defendant s attorney and set a time for the defendant and his attorney and the person who could present evidence that the defendant violated these terms to all be in a courtroom at the same time so the judge could hold a bond hearing. Most of the time, this turned out to be more trouble than it was worth, so I m hopeful that this new mechanism will fix that problem.

6 3. Change to LEO Disability Retirement Hopefully you will never have to worry about this change in the law, but it is beneficial to officers injured in the line of duty. Law enforcement officers used to be required to have five years of creditable service before becoming eligible for a disability retirement. The law now states that if the officer becomes incapacitated for duty as the natural and proximate result of injuries incurred while in the actual performance of his or her duties, and meets all other requirements for disability retirement benefits, that officer will be eligible for disability retirement notwithstanding the five year requirement. This went into effect on July 1 st. And with that, we re done for this week. Since I got so many comments about the robber that turned into a goat story last week, I thought I would end with another police related news story. This one goes into the stupid criminal file: I am going to restrain myself from making a Jersey joke here out of respect for those of my friends who will admit to being from there, and instead will just use this to remind all of you to please party responsibly. 15 Brian T. Beasley Police Attorney High Point Police Department 15 Notice how in this case the guy that called 911 was not arrested. If a similar idea pops into your friends heads one night, remember that you want to volunteer to take the picture.