NC TRYING TO REINVENT PROHIBITION

In the state's continuing war against the consumption of alcohol, North Carolina Governor Mike Easley signed a new law on Monday that will not only make it harder to buy kegs of beer, but will also diminish the legal rights of defendants to challenge illegally or incorrectly obtained evidence by the state in regards to driving under the influence charges.

The new law also makes it a crime to have any alcohol in the system of anyone under 21 years of age and allows police officers to demand a chemical test of citizens under 21, whether or not they are driving a vehicle. It also allows police officers who are investigating crashes to request medical information about anyone in any vehicle accident and to request blood tests from accident victims even if they are unconscious.

In addition, the new laws will allow police officers to charge drivers operating a vehicle with a DUI offense even if they are on private property and even if the business is closed. Previously, only those drivers that were on "public" roadways or areas open to the public fell under the domain of DUI laws.

Furthermore, the new laws also allows police officers to introduce tests from field breathalyzers as evidence, as opposed to the more accurate machine breathalyzer tests that are usually done at police headquarters or police stations. In the past, those more accurate automated tests were usually used as evidence in DUI cases instead of the field breathalyzer units.

The Governor's DWI Task Force, which was a group composed almost entirely of law enforcment officials, was established by executive order in December 2003. The task force was asked by Easley to review current laws and come up with proposals for further reducing and deterring driving while impaired. The new law is effective December 1st, 2006.

In North Carolina, citizens who are 18 years old or older without a criminal history may purchase a shotgun or long rifle without filling out any paperwork or getting a permit. As one reader pointed out, it is indeed true that in order to buy a new shotgun or rifle, even a person without a criminal history has to show identification and fill out federally required paperwork to buy a new or used shotgun or long-gun from a federal firearms dealer. However, under North Carolina law, a person without a criminal record and who meets other requirements may legally buy a rifle or shotgun from an individual who is not a dealer. As such, in the secondary market (person to person), there is absolutely no permit required or paperwork at all to purchase a shotgun. In other words, a shotgun can be bought with no permit at all legally.

However, because of state and federal liquor laws, there is no such secondary market in North Carolina where people can purchase kegs from individuals (at least legally anyway). As a result, all citizens must buy them from a store and now under the new law, everyone must get a permit to buy a keg. Under the new law that takes effect in December, no one -- not even those over 21 -- in North Carolina will be able to buy a keg of beer without a permit. And of course, an 18 year old who can legally purchase a shotgun in North Carolina without a permit cannot purchase beer at all, much less a keg.

In an effort to diminish and also track the sales of kegs and identify individuals who are buying beer, the new law will require the purchaser of a keg of beer to first obtain a permit from the vendor. The permit requirement will not only apply to kegs containing over seven gallons of beer, but will also require anyone buying over a certain amount of beer or wine to also get a permit. Anyone buying over 80 liters of beer, 50 liters of wine, or 8 liters of fortified wine or so-called "hard liquor" will need to get a permit as well.
Previously, DUI charges could be filed if someone under the influence drove on a public road or other area that was considered to be used by the "members of the public." The definition included private areas that were "open" to the public. An example would be a shopping center parking lot. However, the new law extends the reach of the law to include almost any private property that has parking spaces that is used for vehicular traffic at any time, whether or not the business is open. The area does not have be a public road or private property that is open to the public, but it can be almost anywhere that is used by vehicles at any time under the new law. The new extension of the law includes almost every type of property other than a private home, although even then, DUI charges can be filed against someone driving on a private road if the road leads anywhere into a subdivision.

Previously under North Carolina law, anyone under 21 could be charged with a crime if they were found to be in possession of alcohol or had attempted to purchase it. With the new law going into effect, the state has also made it a crime to actually consume alcohol if a citizen is under 21 years of age. As such, students who seek medical attention for alcohol poisoning could now find themselves charged with the crime of alcohol consumption after they seek treatment at any hospital or other healthcare provider.

Police officers also now have the authority to take a person under 21 into custody and require them to take a breathalyzer test even if they are not driving, if they are suspected of drinking alcohol. "A law enforcement officer may require any person the officer has probable cause to believe is under age 21 and has consumed alcohol to submit to an alcohol screening test," says the new law.

The new law would allow officers at college and university campuses to charge students who had been drinking, but did not have alcohol in their possession. Under the old law, those students would normally would not face any charges since consumption was not a crime but possession was a misdemeanor. However, under the new law, students with any alcohol on their breath at all or who show a blood alcohol level after being detained and given a breathalyzer test can be also be charged with a crime.

Under the new law, police officers will now be able to get private medical information from hospitals about anyone involved in a vehicle crash even where alcohol has not yet been established to be involved. As such, anyone who is a victim in a car wreck or other automobile accident may have their medical information handed over to a law enforcement officer under the new law, even if they were not the driver behind the wheel. "If a person is involved in a vehicle crash, any health care provider who is providing medical treatment to the person shall, upon request, disclose to any law enforcement officer investigating the crash the following information about the person: name, current location, and whether the person appears to be impaired by alcohol, drugs, or another substance," says the law. "A health care provider shall disclose a certified copy of all identifiable health information related to that person as specified in a search warrant or an order issued by a judicial official," states the new law.

Remarkably, the new law reduces the ability of defendants in DUI cases in the courtrooms and the ability to throw out or challenge evidence that was obtained by the state except in certain circumstances. "The defendant may move to suppress evidence or dismiss charges only prior to trial," says the new law. Although as an exception, the defendant may still make a motion to dismiss the case at the close of state's evidence, this new rule is a vast departure from established courtroom procedure and places a much greater burden on the defendant.

Local defense attorneys we talked with are already concerned about some of the provisions of the law including the challenging of evidence as well as the elimination of the provision in the law that requires a test from a more accurate automated breathalyzer that prints out the report, as opposed to the field breathalyzers operate by officers.

"This is what happens when you have a former prosecutor who is governor choose everyone on the commission [to come up with the law] -- everyone on there was either involved in law enforcement or worked for the state as a prosecutor," said the local defense attorney, who tries DUI cases and wished not to have his name printed. "There was no one there to serve as an advocate for the legal rights of citizens, just to serve law enforcement."

Governor Easley said that the new laws, although tougher, would be applied fairly. "This comprehensive legislation will better protect the public from the dangers of drunk drivers by strengthening existing DWI laws. The legislation increases penalties for driving while impaired and assures that laws are applied fairly and consistently throughout North Carolina," said Easley in a released statement.

Other than the keg permit, the media across the state have focused on other less onerous provisions in the new law, including stricter penalties for getting involved in an accident or causing injuries while driving drunk. The new law makes most of those types of laws felonies and also makes it easier to classify DUI drivers as habitual offenders. Under the new law, drivers need only to get three DUI's in ten years as opposed to the old span of seven years.

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