2012 Sausage Report Butterflies and Livermush Vol. 5, Number 15 August 3, 2012

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1 2012 Sausage Report Butterflies and Livermush Vol. 5, Number 15 August 3, 2012 Brian Beasley Not A Fan of Either Mullet and Legal Adviser, HPPD Laws are like sausages. It is better not to see them being made. -- German Chancellor Otto von Bismarck No man s life, liberty or property are safe while the legislature is in session Tucker 248, N.Y. Surr. 18 The 2012 Session of the North Carolina General Assembly adjourned on Tuesday, July 3, As always, your friendly neighborhood legal adviser stayed up to date on all of the action, and has prepared this sausage report for you to keep you informed. Without further introduction, let s jump right in and see what our lawmakers have served up this year 1 FIRST, THE IMPORTANT STUFF: Senate Bill 236 (Session Law ) was passed enthusiastically this year, and designated the official state butterfly and the official mullet festival 2 of the State of North Carolina. The state butterfly is now the Easter tiger swallowtail 3 and the official mullet festival is the Swansboro Mullet Festival. Certainly, our leaders in Raleigh showed great wisdom and discernment in these fine selections. But wait there s more! This bill also designated the official state livermush 4 festival. For those that like trivia, here s today s question: What is the official livermush 1 This update is written for law enforcement officers, so I am only going to cover the new laws that I think you need to know about in order to do your jobs (with some additional humorous ones thrown in, of course.) There are many other laws you might be interested in, even some that have a connection to criminal justice, but you can read about those in other places. If you have a question about a new law that you ve heard about, feel free to ask me about it. 2 I was REALLY excited when I found out that N.C. now had an official mullet festival. I couldn t wait to see pictures from the festival of everyone sporting stupid looking haircuts and celebrating their out-of-date coiffures. I was very disappointed when I did a little research and determined that the mullet festival is not a festival concerning the 1980 s hair-do, but some type of fish. 3 Papilio glaucus, of course. 4 I am ashamed to admit I didn t know what livermush was either. My research determined that it is a food product composed of pig liver, pig head parts, and cornmeal. I am sure it is as delicious as it sounds. It is

2 festival of the State of North Carolina? The answer will appear at the end of this legal update. 5 NO FALSE LIENS As most of you know, one of the recent strategies of sovereign citizen groups has been to place false liens on the properties of government officials, such as police officers. Because of very old property laws, a register of deeds generally had no way of rejecting the filing of such a lien and so it would sit there unnoticed until the property it was attached to was getting ready to be sold. Then the presence of this paper with no legal backing would cause all sorts of problems and often take an action by a court to get everything straightened out. Because of these issues, the legislature passed a bill entitled No False Liens. 6 Although there were already some laws on the books that made this sort of thing illegal, this new law increases the punishment for the following crimes from a Class 2 misdemeanor to a Class I felony: G.S (Simulation of Court Process in Connection with Collection of Claim, Demand, or Account); G.S (Filing False Security Agreements); and G.S. 44A-12.1(c) (Causing a Lien to be Filed Knowing It is False or Filed for an Improper Purpose.) A new criminal offense (G.S ) was also created which makes it a Class I felony to file a false lien against a public employee on account of that employee carrying out their official duties. In addition, this bill includes safeguards which allow the Register of Deeds to refuse to file documents he or she suspects are false and to make it clear in the records that a lien is false when it is declared to be so by a court. The No False Liens bill becomes effective December 1, TRAFFIC RELATED LAWS The most significant change to traffic laws this year is actually a solution to a problem that was identified from last year s new laws. Last year, the legislature implemented a system allowing for the immediate pre-trial civil revocation of a provisional licensee charged with a misdemeanor or felony under Part 9 or 10 of Article 3 of Chapter 20 of the General Statutes. 7 That was a fine idea, but the problem was that in order to bring the driver (who would be between 16 and 18) before a magistrate, the commonly cooked by cutting a slice off of a premade loaf and frying it in a skillet, similar to Spam. Yes, it must be as delicious as it sounds. Why else would there be festivals? 5 Although you are dying to know the answer, please do not skip ahead. It s not fair to those readers who are more patient. 6 Session Law Surprisingly, I don t have any laws named after anyone to share with you this year (like Susie s Law or Ethen s Law ) or any laws with really clever names, like Run and You re Done. 7 For more information on this, go back and read A Halloween Story About A Frightening New Law: Changes to Graduated Licensing, 4 L.Q.O.W. 21 (2011). You ll also find a list of the offenses that trigger this revocation there.

3 driver had to be arrested, which didn t seem quite right for a 16 year old charged with speeding 51 in a 35 mph zone. Effective October 1, 2012, you will no longer have to arrest the driver in this situation. 8 Instead, in those cases where the driver is subject to pre-trial revocation 9 and the officer does not wish to make a custody arrest, the officer will notify the licensee that their license is subject to revocation and will provide them with a form which will give them further information. The officer must then file a revocation report with the clerk of superior court s office. (If an arrest is made, you will give this revocation report to the magistrate who does the initial appearance.) Once the clerk receives the revocation report, they will mail a revocation notice to the licensee, who then has a brief window to appeal the revocation. If there is an appeal, it will be heard by a magistrate. Move-over Law Change (S.L ): The law commonly known as the move-over law (G.S (f)) requires that motorists move over at least one lane when passing a stopped public service vehicle with warning lights operating or slow down until the vehicle is safely passed. Effective October 1, 2012, this law will now require this move for stopped utility service vehicles, including electric, cable, telephone, communications, gas, and highway maintenance vehicles that are operating their amber flashing lights. Deaths Caused by DWI (S.L ): Most second degree murders become B1 felonies instead of B2 felonies effective December 1, 2012, which enhances the punishment for these crimes. However, repeat felony death by vehicle (G.S (a6)) will remain a B2 felony. Aggravated felony death by vehicle (G.S (a5)) will remain a Class D felony, but the new law requires that the sentence come from the aggravated range. Felony death by vehicle is raised from a Class E to a Class D felony, but although a Class D felony conviction requires an active prison sentence according to Structured Sentencing laws, this law specifically authorizes the court to give an intermediate sentence for a conviction of this crime. 10 NEW CRIMINAL OFFENSES Terrorism (S.L ): Effective December 1, 2012, if a person commits an act of violence (defined as a homicide, a felony that includes an assault or use of violence or force, or any felony that includes the threat or use of an explosive or incendiary device or nuclear, biological, or chemical weapon of mass destruction) with the intent to either (a) intimidate the civilian population at large or an identifiable group of the civilian 8 Session Law This part hasn t changed. A provisional licensee is subject to pre-trial revocation of their provisional license when they commit a misdemeanor or felony under Parts 9 or 10 of Article 3 of Chapter 20, not including equipment violations. 10 For those that need a review (like me,) repeat felony death by vehicle is a death caused by impaired driving where the driver has a previous conviction for a death caused by drunk driving. Aggravated death by vehicle is a death caused by impaired driving where the driver has a previous impaired driving conviction within seven years. Felony death by vehicle is a death caused by impaired driving. Now we re caught up.

4 population or (b) influence through intimidation the conduct or activities of the federal, state, or local government, they are guilty of this new offense. This terrorism offense will be a separate offense punishable one class higher than the underlying charge for the act of violence. If the underlying act of violence is a Class B1 or Class A felony, this terrorism charge will be punished as a B1 felony. Real and personal property used in or derived from the offense is subject to seizure and forfeiture. Habitual Misdemeanor Larceny (S.L ): Also effective December 1, 2012, any larceny is a Class H felony if the defendant has four prior convictions for either misdemeanor or felony larcenies. Convictions for multiple offenses in the same county entered on the same day in District Court or the same week in Superior Court can only be counted as one prior conviction. This is not a status offense like habitual felon if a person commits what would ordinarily be a misdemeanor larceny but has four prior convictions, you would only charge that person with Habitual Misdemeanor Larceny. You would not charge the misdemeanor larceny and this new law together. Waste Kitchen Grease (S.L ): Effective January 1, 2013, new G.S makes three more things unlawful: (1) the larceny of a waste kitchen grease container or the grease inside it if the container bears a notice that removal is prohibited without the written consent of the owner; (2) intentionally contaminating or purposely damaging any waste kitchen grease container or the grease inside; (3) placing a label on a waste kitchen grease container knowing that it is owned by another person in order to claim ownership of the container. If the value of the container or grease is more than $1,000, the offense is a Class H felony. Otherwise, it is a Class 1 misdemeanor. 11 New Trespass Law (S.L ): First Degree Trespass is now a Class A1 misdemeanor under G.S (c) if the trespassed premise is an electric power, water, or natural gas type property and the defendant either actually entered a building or had to surmount a fence or other barrier to get onto the property. It becomes a Class H felony trespass if the trespass is committed with the intent to disrupt the normal operations of the facility or involves an act that places the offender or others at risk of serious bodily injury. This new law becomes effective September 1, Unlawful Sale of a Child (S.L ): 12 Effective December 1st, new G.S makes it a Class F felony for a person to act in willful disregard for the life and safety of a minor by participating in any of the following: acceptance, solicitation, offer, payment, or transfer of any compensation in connection with the unlawful acquisition or 11 I am not making this law up. Apparently, processed fryer oil, or yellow grease, is traded on the commodities market and its value has skyrocketed as of late. The reason is because it can be used to create an engine fuel and demand has gone up as gas and oil prices have gone up. And to think, I had a box of this stuff in my parent s attic that would have been worth a fortune today if they hadn t thrown it out. Or maybe that was comic books and baseball cards. 12 Every year there is at least one new law passed that causes you to say, Wait you mean that wasn t already illegal? Unlawful sale of a child is this year s entry into that category.

5 transfer of the physical custody of the minor except as ordered by the court. The child victim of this crime will be deemed an abused juvenile under the juvenile code and the defendant may be ordered to register as a sex offender if the court finds that registration would further the purposes of the sex offender registration program. CHANGES AND CLARIFICATIONS TO CURRENT LAWS Finally, we ve got a few important changes to some laws that are already on the books that you need to know about. Metal Theft Laws (S.L ): Because of the problems associated with copper theft (along with other metals), lawmakers continue to try and add tools for law enforcement to use to combat this crime. This year, along with a few more regulations on metal recycler businesses, the legislature created a brand new crime. New G.S makes it illegal to willfully and wantonly cut, mutilate, deface, or otherwise injure any personal or real property, including any fixtures or improvements of another person for the purpose of obtaining nonferrous metals. The crime s punishment will correspond to the amount of damage done (including all costs of repair.) If the damage is less than $1,000, then it is a Class 1 misdemeanor. It s a Class H felony if between $1,000 and $10,000, and a Class F felony if more than $10,000. If serious injury results, it s a Class A1 misdemeanor, it s a Class F felony if serious bodily injury results. Finally, if it causes a death, it s a Class D felony. These laws become effective on October 1, Spice and the Drug Tax (S.L ): Synthetic Cannabinoids, commonly known as spice, have been added to the list of substances subject to the drug tax, meaning that when these drugs are seized, the Department of Revenue will come a- callin. This went into effect on June 26, Protection for School Employees (S.L ): There are two important parts to this new law. The first is a new criminal offense called Cyber-bullying of School Employee by Student. According to new G.S , it will be a Class 2 misdemeanor to do any one of several specific electronic acts with the intent to torment or intimidate a school employee. The specific acts are very similar to those found in the current cyber-bullying law (G.S ) but that statute only prohibits acts intended to intimidate or torment a minor. This one is effective December 1, The second part of this bill protects school employees from having criminal process issued against them (for example, by a parent going to the magistrate s office to swear out a warrant) without a review. G.S. 15A-301 has been amended to provide that no criminal process may be issued on a school employee for actions taken by them in the course of their employment 13 without prior written authorization of the District Attorney. The District Attorney may waive this authority by letter to the chief district judge in that county. If he or she does so, a magistrate will be appointed to review the case before 13 With the exception of traffic offenses or offenses committed in the presence of an officer.

6 criminal process is issued. It s a little unclear from the legislation when this becomes effective, as the bill states that it comes into effect on and after the date when a magistrate is appointed by the chief district court judge to perform the function set out in the new law. And one more unrelated change for those of you who have considered committing a felony directly related to your office or employment as a law enforcement officer or government employee, you should reconsider in light of the new G.S A which provides that you will forfeit your retirement benefits if convicted. 14 TRIVIA ANSWER Okay the question was: What is the official livermush festival of the State of North Carolina? I m sorry to admit that this was a trick question. Livermush was much too important to be limited to one festival a year, so new G.S designates the Shelby Livermush Festival as the official fall livermush festival and the Marion Livermush Festival as the official spring livermush festival. So I m guessing livermush never goes out of season. Bon Appetit! Brian T. Beasley Police Attorney High Point Police Department 14 Session Law The fact that this law doesn t take effect until December 1 st should not factor into the equation.