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House | June 24, 2015 | Committee Room | Judiciary I

Full MP3 Audio File

Call the Judiciary Committee number one to order. We have a number of pages, we have Constantine [xx] Constantine would you stand up and tell us where you're from and who your sponsor is and where do you go to school? My sponsor is Representative Bishop and I go to Providence High School. What grade are you in? I'm [xx] sophomore. Glad to have you. Florina[sp?] [xx] are you related? Yes we are brother and sister. And tell us about yourself. I'm a rising junior and I also go to Providence High School and my sponsors are same Mr. Bishop. Next is Victoria Collins. My sponsor is Representative Reeves I go to Chatham Central High School and I'm a rising senior. If you're a senior you have players who go to college?  Yes. Have you chosen the college? I haven't applied to any, but I want to go to UNC Chapel Hill if I can get in. Disbrow is that right? Disbrow[sp?]? Yes sir, I'm Hogan Disbrow[sp?] our Representatives Mr. Iler. I got South Brunswick High School in Brunswick County, and yes that's about it. What year are you? I'm rising sophomore. OK, glad to have you. Mr. Will Dan. Hello I'm William Dan, I go to Clayton High School and my supporter is Mr. Daughtry, and I'm a rising senior. Can you play bass guitar? No madam. Will have you any college plans? I have a couple of tours set up to go Western Carolina and UNC Charlotte. Great. Fine young man. Sergeant at Arms are Barry Moore, David Linthicum, and Rey Cooke. [xx] strong when we look after us particularly people this side of [xx] trouble makers. There's a committee substitute and I think Ms. Churchill has gone after it but there's one amendment that I want you all to consider I don't tell you what to do but as you know Representative Hall introduced an amendment last week that had to do with those persons who are found not guilty or have their cases have been dismissed, this amendment will only apply to person who are found not guilty, take a big fine and I think the reason for this amendment has to do with Miss Henderson, if you want to explain that if nobody has an objection, so who won it and why thank you Mr chair, I'm [xx] from the times constituents, because I've been working on expunction issues seen as a former veteran who would help police officer, who uses one term for lifetime expunction when he was younger and subsequently he was involved in a nasty [xx] fight and his ex filed a civil warrant against him and he ended up getting arrested but did get found not guilty in the court and found out because he's already used this once a lifetime that he was unable to clean his record himself getting employment difficult. So he's been working for years and you're with Senator [xx] last year because he had expunction bill and he worked with   [xx] and he tested in [xx] because he's [xx] out there. So I just would urge your support, I know there are other cases deseving like that but that was a situation that it may, so thank you. I think I can ask Representative Jackson to explain when a person goes for magic [xx] generally it could occur when there's been a fight on Saturday night they have cross watch  so could be a domestic issue, could you talk a little bit about that? Yes I'll do a law enforcement officer might be called to the scene and refuse to take out a warrant and then the next morning anybody can go down to the magistrate and basically say this is what happened and they issue a warrant and it goes to court first time [xx] but even if they show up, the DA serve it and says there's nothing to it and often times they get dismissed. Is it due to expungement[sp?] Or if you came to me as a, or if you were 18 or 19 years old and you came to my office and I represented you and got this dismissed and you say,

should I get it expunged well it's a once in a lifetime thing you know, you're 18, 19 years old you might want to wait a few years but you see if you get a drug, you know just in case you get a drug charge or something like that. But this particular amendment would only apply to those who are found not guilty and the difference is, if you are found not guilty race due to color is in place and that charge can never be brought against you again. I've known a number of domestic cases where there be a problem with the parties and there would be warrants taken out and there's a case, there's a trial and sometimes they're both charged, and the court finds them both not guilty or finds them both guilty. So the question is, should we consider this amendment in our expungement? Representative McNeil, what do you think. We have copies of it, or? Yes sir, pass them out right now. sort of a got the cart before the horse, the's a proposed committee substitute to Senate Bill 570. Representative Howard moves that we have the committee substitute unfavorable as to the original before us for consideration. All in favor of that signify by saying aye? So now we had this amendment that you have a copy of and I will let Miss Churchill explain the amendment. The amendment would allow, in statute it allows for expunsion or notice for dismissal or finding ift not guilty will allow a person who has previously been granted an expungetion[sp?] under that statute to go with found not guilty or not responsible by the court can still apply to have a subsequent funding expunged. The court if the court finds that the person has not previously received an expungement for just the not guilty or not responsible charge, and the person has not they were saved as expungement under the other expungement statutes, and not previously not been convicted of a felony of the state or any states, any of the United States that the court has to award expungement of the finding not guilty or not responsible. Representative Arp. That is not a case that has felony on the reach. Correct. No matter what, there's a timing of follow up? Sure. There's a timing another felony [xx] There's expunge of bill that passed some years ago has a limited number of felonies and you are allowed to be expunched if you are like 15 years and you get justice process in court this would say and you can only use it one time, this would say that if you have a if you are found not guilty, if you and your wife getting to a fight and the court finds that you are not guilty that means  you can never be tried but again because that is how system works, this will allow you to have another expansion, is that right? [xx] I don't know if I have corrected the stuff but Mr chairman [xx] Rrepresentative [xx] questions it seems like to me if you are taking about somebody who is found not guilty of  something, why does it matter that they had a felony 12 years ago is there significance on other two counts of what wasn't right and the judge found them not guilty? why would we say that one person can get expunched but somebody who had a felony 12 years previous for drug they couldn't get it but she seems like a maid its a mum [xx] I cant say why I can take the [xx] but only one expunction as a dismissal or a not guilty also has that same requirement, if you ever fill any conviction you cannot get that one expunction of a dismissal is not guilty. So the amendment is simply extending that same requirement to this additional expunction that's being allowed by the amendment. So whether or not the [xx]

should be there or not, is a larger issue not the least specifically to this [xx] Representative McNeill. My question I guess is a technical one, I understand what not guilty is, what is not responsible and why is it in there because of, why is it in there, the word not responsible? [xx] in the existing section. And the reason if you go if there is an infraction, as I said about offenses called an infraction which is speeding, redlight I don't know it all, they, you're completely not responsible you know what it is? You know what that is Durham? Its not a cream of chocolate. And in fraction its not a criminal violation of law, so if you're not pleading guilty or not guilty you're pleading not responsible for the infraction[sp?]. Or expunged. Follow up? Yes sir. So the words not responsible in this is to cover in fractions[sp?]? But the word not responsible is in the current law, and so the amendment is just being consistent with that. It's a practical matter I think it's very weird you will probably get dismissals of fractions expunged, but obviously it's. If it expunged you're dismissed. You can plead not responsible to a speeding ticket, to speeding to 70 in a 65 I suppose and 70 and be found not responsible. So if this [xx] this is only if a judge finds you not guilty or dismissed. But dismissed. But that's just if the judge finds you're not guilty. The second expunction under the statute would only be allowed if you were found not guilty or not responsible by the judge. So how about if the State fails to meet its burden of proof and I stand up after the State rest, and I say, Judge we move to dismiss, the State hasn't met their burden of proof, and the judge says Case dismissed. Can I give? Can I get it expunged then? No. Not under the way that this is written no. Would have to find not guilty, so you would have to ask the judge to find them not guilty so that you can then have that. Representative Martin. Thank you, Mr. Chair. So question I think for staff, under the current law they get the one expunction. It has to be after either a finding of not guilty or  dismissal, is that right? Current law allows one expunction of either a dismissal or a find him not guilty, not one of each, one of either of those.  So, follow up Mr. Chair? following on Representative Jackson's earlier question about the relevance of having a previous felony conviction, it seems quite relevant if you're talking about a dismissal because cases are dismissed for a variety of reasons, but here in the amendment as I understand it we're just talking about in the case of a finding of not guilty so arguably the existence of a prior felony is less of it because as you said Mr. Chair we're actually [xx] not guilty which is the sort of blessing that we don't think you did it, so I'm not arguing one way or the other but just to say that there is an argument to Representative Jackson's point there's a base for that that if we wanted to proceed in that direction we could is valid one. I think that's for another day, I think not guilty is clear to me, I think it's clear enough to say that if a person is found not guilty then he ought to be entitled to an expunsion. Yes, I agree Mr. Chair just If we ever want to take a look at the felony aspect of it separately. I agree with just the not guilty aspect of here, but if we wanted to look down the road at the. Another day maybe sir. As to the bill itself, would you explain that one more time?   Yes sir. Mr. Chair, the PCS that is before you does three separate things. The first is it prohibits expunsions for certain DWI charges or DWI systems. Then that means no DWIs will be expunged? [xx] correctly there're some small categories of DWIs convictions that could still be expunged. Where're they? Mr. Chair, the way this is currently written arguably because of the 1.5. 4 which is the under 18 felony expunsion, habitual DWI is a felony and you

have not added that exemption because [xx] says that if someone under 18 managed to get a provisional DWI before the age of 18 then arguably that would be eligible for expunction. There are also [xx] offences in 28-141.1 [xx] death by vehicle, felony [xx], injury by vehicle that are predicated on having driving impaired while the offense occurred, in a lot of cases the actual DWI charge is dismissed in favor of the felony conviction propelling [xx] by vehicles so you will not have [xx] by vehicle and that's not necessarily excluded from the [xx] section allowing it's function, Representative Jackson had House Bill that is in the senate and the way he did [xx] was to use the phrase of him involving, offense involving impaired driving which is a defined term that covers all of those offenses, but this was drafted differently when the Senate made their changes. So it does cover all basic need [xx] offenses but there are some potential excitements[sp?]  Can we fix that so we cover all of them? We can let's do that. OK. Can you draw up an amendment up for that? Yes, thank you. We want to fix that so no DWIs will be expunged. I hadn't realized about findings for a committee that that would go [xx]. We thought that was the law. Alright, what's the next thing? T He second thing is the PCS was doing is right now to talk over an expunction [xx] has to have remained with good behaviour and free from any other conviction other than a traffic violation and the bill is adding minor boating violations to the offenses that the position could have. Now what are boating violations? As I understand what boating violations are it was in the [xx] and have got a great process and have got the second I don't have any light jacket so correct she's holding [xx] on page 1133 the ex function wouldn't be allowed for voting volunteers and [xx] on page 11 is adding a new category of expunctions, the topics would be for usual drug offences [xx] icon a usual drug offence would be a conviction of possession of certain substances or possession of drug paraphernalia when the defendant has not yet attained the age of 45 Representative [xx] Yes I have a question, someone under the age 18 who is, having problem with alcohol or let's say with drugs but he's been driving well into for number of vacation I don't about the case, and was convicted after one of those event of [xx] homicide due to his negligence and so forth. This person would be entitled to a one-time expungment as that at that particular situation. This bill wouldn't apply. This PCS only has to do with minor drug offences, this particular bill does. If you're 18 years old, you go to college you get to take it [xx] smoking marijuana. This bill doesn't have anything to do with driving under the influence or behavioral motor vehicle death. These are just minor infractions that we're dealing with today, is that right?   Thant's right. Can you describe the fractions or the misdemeanors. For the vehicle drivers? It actually won't be just misdemeanors if I understand it correctly, it could potentially be possession of lower level felony, possession of [xx] drug. We want to schedule one or two drugs. I knew you're going to ask that. Is Cocaine by any chance? Schedule one scale two is the cocaine opium, morphine, [xx] And they would have, would marijuana be included also? Yes. Questions about the, in terms of bill? As you are considering this,

I would love for you to sort of harken back to the explanation that the chair gave you in previous meetings on this bill having to do with brain development of young people and the fact that they pretty much think they're invincible at certain ages, and these are offences that often they find themselves confronting because of that, and that I hope that you will favorably on this PCS, thank you. And what does the bill not cover, what offenses? I know that it doesn't, for example trafficking and that sort of thing? It does not cover possession with intent to sell, it does not cover trafficking of drugs. It would deal with any possession of drug paraphernalia. Representative McNeill. While we're killing time, I noticed where that in this statute that if a person is convicted of more than one offence in one said in a court, that it's current is more, is there any limitation on that because they have like theoretically 10 offences that would dispose to having one case and still be counted as one case? If they're consolidated for punishment, I think that's going be their the crack of it. I have seen cases where someone goes off free for three days and get four tickets, in other Representative Jackson [xx] one time in court and just consolidate them for punishment next instead of warning, it's more than one term accord it's two, in other words it's not one week and if something happen on two seasonal two weeks later happens again. That's two different offences, with understanding Yes Sir. How much time do we have?  If you're getting tired we'll vote any time you want us to. No, I was, no I'm fine. Mr. Chairman but I noticed we had a number of folks here and I was wondering if we had anybody that would like to speak either for or against, I'd be interested in hearing from maybe we have some real life stories out there that someone might want to share. Do we have time to do that? Absolutely. before we do that, I think Representative Robinson[sp?] wants to introduce some people to the committee Representative [xx] killing time. I'd like to introduce my family if I could from Wilmington, my son Rick there daughter-in-law Romey[sp?] and grandson Robbie[sp?] and grandson Rick. Delighted to have you here, you have a great dad. anybody want to speak in the audience either for or against the bill? Not a lot of enthusiasm I want to endorse that they have a great dad, that's what I wanted [xx]. Yes Sir. Mr. Chair, and if we've got time I wonder if they'd be willing to give us any dirt on Representative Robinson. Four pictures. Mr. Chair? Yes sir. This amendment, are we going to vote on this, that's been included in the next Amendment Act There's only one Amendment Okay The Amendment is before you and I'll run the amendment, I only favor the amendment that has to do with being found not guilty then we'll all be saying aye, Aye! Opposed. The eyes have it. Now we have the committee substitute with the amendment, rolled it and the question is anybody have a motion in respect to that She is working on human [xx]   We got another amendment I'm sorry [xx] Would you mind telling at least the amendment does. The rest of the amendment goes into 145.5 which is on the first page of your bill where your current would be page 210 and change that language to say, Any of tests involving impaired driving is defined page 20-4.01(24A) which includes DWI, DWI to commercial vehicle, provisional deed DWI, the felony death of a vehicle, felony serious injury by vehicle when DWI is required for it to be that offense, involuntary manslaughter by a vehicle when you're drunk, and there's one other like that that I can't remember at the top of my head. So it basically covers everything that requires DWI where you could have that offense[sp?], and then it also gives in on page, I don't know what page it

was, nine I think, page 9. What we have part of beginning 125.4, is the statute allows that under 18 convicted of felony [xx] being struck out for four years and it pulls in sub-section A of that statute which is [xx] of follow the leader and aberration the same language they do not [xx] so they'll be forgiven of those under 18 convicted of either stoned[sp?] offenses that are in meth[sp?] from having those expunged. The under 18 misdemeanor statute already [xx] prohibits the [xx] being expunge the records [xx] but I didn't find [xx] Everybody understand the amendment? Would you in your own innovative away just tell us exactly what that was? You cannot expunge a DWI.   That was quick, short to the point. All in favor of Representative's Jackson motion let it be known by saying Aye? Aye. And opposed No, and Ayes have it. Now I think we're ready to vote on the bill as amended, Committee Substitute rolled into a Committee Substitute. All in favor of the motion let it be known by saying Aye. Aye. Opposed No. Ayes have it. Thank you for coming and