CMPD POLICE LAW BULLETIN
A Police Legal Newsletter
November - December 2006
Contents
Neighborhood
Development Code
Enforcement –
Towing Procedures
for Abandoned,
Junked and
Hazardous Motor
Vehicles
Towing Vehicles for
DWI – Completion of
Tow-In Form
New Seat Belt Law
Cell Phone
Restrictions for
Drivers Under 18
New Offense –
Underage
Consumption of
Alcohol
Calling Card
Vending Machines –
Not Gambling
Devices
Officer Reminders
1. Arrest
Affidavits –
Victim’s Name
2. Arrest
Affidavits –
Transporting
Officer
3. New Waiver
Lists – Effective
December 1,
2006
Volume 25, Issue 6
Page 1 of 6
Forward: This issue contains an explanation of the role of officers when a
person objects to the towing of their vehicle after it is authorized by a
Code Enforcement inspector. Also, a simple method for officers to follow
to prevent cars being mistakenly towed to Cumberland County is
addressed. Three new laws officers should know in 2007 are covered as
well in this issue. And finally, a few “officer reminders” dealing with Arrest
Affidavits and how to find the new waiver lists are set out in this issue.
NEIGHBORHOOD DEVELOPMENT CODE ENFORCEMENT –
TOWING PROCEDURES FOR ABANDONED, JUNKED, AND
HAZARDOUS MOTOR VEHICLES
Under the City Code, Code Enforcement inspectors are responsible for
the removal and disposition of abandoned, junked, and hazardous motor
vehicles. Section 10-276 of the City Code provides that any such vehicle
found to be in violation of the Code may be removed to a storage area.
Prior to removal, the Code Enforcement inspector will place an orange
sticker on the vehicle that provides notice of the violation and specifies the
time for compliance, which is seven (7) days. In addition, if the vehicle is
located on private property, a copy of the sticker will be sent by first-class
mail to the property owner. If a number of vehicles are involved, the
Inspector will place a sticker on each vehicle and will send a copy of the
notice of violation by first class mail to the property owner.
Officers of the CMPD may be dispatched to the scene of a vehicle tow by
a Code Enforcement Inspector in order to stand by in the event a crime
occurs in their presence. Often, the inspector will not be present initially at
the scene of a tow. The contract wrecker operator should have in his/her
possession a document from Code Enforcement ordering the tow.
Occasionally, a wrecker operator will encounter a vehicle owner who
objects to the tow and will request assistance from the police. The
manner in which the responding officer handles the call depends on the
location of the vehicle.
Vehicle located on public property (public street/public vehicular
area)
The officer should inform the vehicle owner that the wrecker operator has
received authorization to make the tow. In addition, the officer should
inform the owner that an inspector will be brought to the scene and if the
owner persists in preventing the tow at that time, he/she will be subject to
arrest, as described below.
CMPD POLICE LAW BULLETIN
A Police Legal Newsletter
November - December 2006
Volume 25, Issue 6
Page 2 of 6
If the vehicle owner is still uncooperative, the wrecker operator will contact an inspector and request
that he/she come to the scene. Under Section 10-62 of the City Code, it is unlawful for any person
to interfere, harass, or otherwise impede a Code Enforcement inspector who is carrying out or
acting within the scope of his/her duties, and officers are authorized to make an arrest in such
circumstances. A violation of the Code provision is a Class 3 misdemeanor.
Officers should use this Code section when charging violators who interfere with, harass, or otherwise
impede a Code Enforcement inspector at the scene of a vehicle tow. The charging language to be
used is as follows:
. . . did interfere, harass, or otherwise impede (insert name), a city Code Enforcement
inspector, who was carrying out his/her duties, to wit: towing a(n) (abandoned)
(junked)(hazardous) motor vehicle, in violation of Sec. 10-62(a), City Code of Charlotte, N.C.
This offense having occurred within the corporate limits of the City of Charlotte.
Vehicle located on private property (driveway or front/back yard of a residence)
In this situation, the responding officer should not arrest, or threaten to arrest, the vehicle owner if
he/she refuses to allow the vehicle to be towed, or even refuses to allow the wrecker operator or
inspector to come onto the property. Instead, it should be explained to the owner that he/she will have
the opportunity to appeal the tow and that the inspector can apply for an administrative inspection
warrant to enter the property and tow the vehicle. Every effort should be made to obtain the owner’s
voluntary consent. However, if he/she persists in refusing to cooperate, it will be necessary for the
inspector to obtain an administrative inspection warrant which allows entry onto the property to tow the
vehicle. If an administrative inspection warrant has been obtained and the Inspector is on the scene,
the responding officer should follow the above guidelines and arrest the vehicle owner for a violation
of the ordinance, if necessary.
NOTE: The towing of a vehicle by a Code Enforcement inspector is for a violation of law and,
therefore, is different from a repossession or towing of a vehicle from a private parking lot. In
those situations, an officer’s responsibility is to prevent a breach of the peace and if the owner of the
vehicle is present and objects to the tow, the officer should not allow the vehicle to be towed. In a
situation involving Code Enforcement, a vehicle can be towed, even if the owner objects, whenever
the vehicle is located on public property or if it is located on private property and an administrative
inspection warrant has been obtained.
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TOWING VEHICLES FOR DWI – COMPLETION OF TOW-IN FORM
Several incidents have occurred recently in which vehicles towed from the scene of a DWI were
transported from the wrecker service to the State holding lot (Tarheel Specialties, Inc.) as a result of
an error made in the completion of the CMPD Tow-In and Storage Report form.
CMPD POLICE LAW BULLETIN
A Police Legal Newsletter
November - December 2006
Volume 25, Issue 6
Page 3 of 6
The Hold/Seizure Information section of the form contains three (3) boxes. They are:
YES: Check whenever the vehicle should be held for non-DWI forfeiture purposes. For example, a
stolen vehicle or a vehicle being held as evidence.
NO:
Check for all regular tows that are simply to clear the roadway (including non-forfeiture DWI’s).
DWI: CHECK THIS BOX ONLY FOR DWI FORFEITURE HOLDS.
DO NOT CHECK THE DWI BOX FOR REGULAR DWI’S – CHECK THAT BOX ONLY FOR
DWI FORFEITURES!!!
If the “DWI” box is checked, the vehicle will automatically be transferred to Tarheel Specialties,
which is located in Linden, NC (Cumberland County). If the box is checked in error and the
vehicle is not actually subject to forfeiture, the CMPD may be responsible for the towing and
storage charges associated with the transfer of the vehicle.
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NEW SEAT BELT LAW
Effective December 1, 2006, until June 30, 2007, a backseat passenger of a motor vehicle moving
forward on a street or highway will receive a warning ticket for not having a seat belt properly fastened
about his or her body.
On July 1, 2007, a violation of the seatbelt requirement for back seat passengers will be an infraction
with a ten dollar ($10.00) penalty and no court costs. No driver’s license points or insurance
surcharges will be assessed. G.S. 20-135.2A(a)
Note: Failure of a back seat passenger to wear a seat belt will NEVER be justification for the
stop of a vehicle. G.S. 20-135.2A(d1).
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CMPD POLICE LAW BULLETIN
A Police Legal Newsletter
November - December 2006
Volume 25, Issue 6
Page 4 of 6
CELL PHONE RESTRICTIONS FOR DRIVERS UNDER 18
Effective December 1, 2006, individuals possessing a limited learner’s permit or a limited provisional
license are prohibited from using a mobile phone any time while operating a motor vehicle on a street,
highway, or public vehicular area. A violation of G.S. 20-11(c)(6) [limited learner’s permit] or G.S. 2011(e)(6) [limited provisional license] is an infraction with a twenty-five dollar ($25.00) fine and court
costs.
Full provisional licensed drivers and licensed drivers under the age of eighteen are prohibited from
using a mobile phone while operating a motor vehicle in motion on a street, highway, or public
vehicular area. Exceptions are permitted in emergency situations and when the driver is
communicating with his or her parent, legal guardian or spouse. G.S. 20-137.3
A violation of G.S. 20-137.3 is an infraction with a twenty-five dollar ($25.00) fine. No court costs,
driver’s license points or insurance surcharges will be assessed.
Given the difficulty in accurately determining the age of a driver, it is recommended that a vehicle stop
not be made solely on suspicion of a violation of G.S. 20-137.3. However, if a car is observed
speeding, for example, and the driver is on a cell phone, officers can investigate whether a violation of
G.S. 20-137.3 has also occurred.
If the driver is under 18, officers may inquire to whom they were speaking. If the driver says “a friend”,
there is a violation of G.S. 20-137.3. If the driver says “parent”, “guardian”, or “spouse”, or refuses to
identify the individual, the officer may request consent to take the phone to redial the last number.
Should be driver refuse to allow an officer to redial a number, the officer should issue a citation. It
should be explained to the driver, that if they contest the citation in court, the officer will testify the
driver was given an opportunity to verify they were speaking to a parent, guardian or spouse and the
driver refused. Under no circumstances should officers seize a cell phone as evidence of a
violation of G.S. 20-137.3.
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NEW OFFENSE – UNDERAGE CONSUMPTION OF ALCOHOL
Effective December 1, 2006, G.S. 18B-302(b) was amended to make it an offense for a person under
the age of twenty-one (21) to consume an alcoholic beverage. Previously, the law only applied to the
purchase or possession of alcohol by an underage person.
If an officer has probable cause to believe that a person is under the age of 21and probable cause to
believe that the person has consumed alcohol, the officer can require the person to submit to an
alcohol screening test (alcosensor or intoxilyzer). The results of the test, as well as a person’s refusal
to submit to the test, are admissible in court.
CMPD POLICE LAW BULLETIN
A Police Legal Newsletter
November - December 2006
Volume 25, Issue 6
Page 5 of 6
The statute can be enforced by either an arrest or the issuance of a uniform citation. A violation by
an individual under the age of nineteen (19) is a Class 1 misdemeanor with a mandatory court
appearance. A violation by a 19- or 20-year old is a Class 3 misdemeanor and is waivable on
payment of a $25.00 fine and the costs of court.
The charging language for violations is as follows:
Consumption by person under the age of 19
. . . being less than 19 years old did consume an alcoholic beverage. G.S. 18B-302(b)(3).
Consumption by a 19- or 20-year old
. . . being (19)(20) years old did consume an alcoholic beverage. G.S. 18B-302(b)(3).
[Strike: “operate a (motor) vehicle on a (street or highway)(public vehicular area”)]
NOTE: The statute does not apply to underage consumption for religious, medical, or cooking school
reasons.
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CALLING CARD VENDING MACHINES – NOT GAMBLING DEVICES
We have received information that a new type of vending machine may soon be installed in the area.
An attorney representing Coleman Music & Entertainment, a company from Jacksonville, FL that
sells long distance calling cards, recently notified the District Attorney in Union County that the
company planned on installing “FreeSpin” and “FreeDraw” vending machines, which are
manufactured by World of Games.
Coleman sells 25-minute calling cards for $5.00 through the vending machines. The machines
incorporate a promotional game in which customers are given 100 “free promotional points”
with which they can play a game. The points may only be used to play the game and are not
redeemable for any prize. No purchase is required to play the game and individuals may obtain
free passes to play by calling a toll-free number, mailing a request to Coleman, e-mailing a
request to World of Games, or asking a store clerk for a free pass. Individuals playing with free
passes have the same odds of winning points redeemable for prizes as do customers who
purchase phone cards.
The issue is whether or not the promotional game constitutes illegal gambling. In American
Treasures, Inc. v. State, 173 N.C. App. 170 (2005), the North Carolina Court of Appeals held
that a similar telephone calling card/promotional prize game was not gambling. The court
CMPD POLICE LAW BULLETIN
A Police Legal Newsletter
November - December 2006
Volume 25, Issue 6
Page 6 of 6
stated that the phone cards are a “valuable commodity, the sale of which is promoted by ‘a process
that is common in many promotional and sweepstakes type contests.’”
The District Attorney’s Office in Mecklenburg County is of the opinion that the “FreeSpin” and
“FreeDraw” vending machines do not constitute illegal gambling and, therefore, no enforcement
action should be taken.
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OFFICER REMINDERS
Arrest Affidavits – Victim’s Name
When completing the arrest affidavit, if the victim of the crime is a person, make sure that you list the
person’s name in that section. Do not list “State of North Carolina” as the victim in such a case. The
State should only be listed as the victim, for example, in a drug case.
Arrest Affidavits – Transporting Officer
The transporting officer should sign the arrest affidavit, even if the arresting officer completes the
narrative portion. In addition, the transporting officer should discuss the case thoroughly with the
arresting officer.
The narrative in the affidavit should not be written in the first person (“I observed the suspect . . .”).
This makes it appear that the transporting officer made the arrest. Instead, the narrative should be
written using the arresting officer’s name (“Officer Smith of the CMPD observed the suspect . . .”).
In order to avoid being subpoenaed for court, the transporting officer should put “C” (for “complainant”)
beside his/her name on the arrest worksheet. The transporting officer should designate the arresting
officer as a witness (“W”), which will ensure that the arresting officer will be subpoenaed for court.
New Waiver Lists – Effective December 1, 2006
The new waiver lists for Traffic, ABC, Hunting/Fishing/Boating, Marine Fisheries, and Parks and
Recreation Offenses went into effect on December 1, 2006. The changes this year are relatively
minor and the basic fines and court costs have not changed.
The new lists, and a document outlining the changes, are posted on the CMPD Portal:
http://cmpd_web/dept/Police_Attorney/Waiver%20Lists/Forms/AllItems.aspx.
The lists are also located on the following website: http://www.nccourts.org/Forms/FormSearch.asp
(select “Waiver” under the “Category” section, and then click on “Search”).
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