A New Kind of DWLR

As of December 1, 2013, there is a new type of driving while license revoked under G.S. Chapter 20.

The Old Law. Most violations of G.S. 20-28(a) committed before December 1, 2013 were punishable as Class 1 misdemeanors. Three exceptions applied. The following types of drivers were punished as though they had been convicted of driving without a license, which, for offenses committed before December 1, 2013, was a Class 2 misdemeanor:  (1) The restoree of a revoked driver’s license who operated a motor vehicle on the highway without the insurance required by law (G.S. 20-28(a)); (2) A driver revoked solely under G.S. 20-16.5 as a result of a civil license revocation arising from an implied consent charge who drove after the minimum revocation period had expired (G.S. 20-28(a1)(1),(2)); and (3) A person who drove while his or her license was revoked for failure to pay child support or to comply with a subpoena issued pursuant to child support or paternity establishment proceedings and who was eligible for reinstatement, but had not applied for that relief (G.S. 20-28(a1)(3)). People subject to the latter two exceptions also were treated for driver’s license and insurance purposes as if they had been convicted of driving without a license under G.S. 20-35.

The New Law. On or after December 1, 2013, a person who (1) drives (2) a motor vehicle (3) on a street or highway (4) while his or her license has been revoked by the State of North Carolina (4) knowing that his or her license is revoked commits a Class 3 misdemeanor. See S.L. 2013-360, Section 18B.14.(f) (amending G.S. 20-28(a)).

If, however, the person’s license revoked for impaired driving, the person is guilty of a Class 1 misdemeanor. G.S. 20-28(a). Thus, there now is a new type of driving while license revoked offense in North Carolina. To establish the new Class 1 misdemeanor offense under G.S. 20-28(a), the State must prove the four elements listed above and a fifth element, namely “that the person’s license was originally revoked for an impaired driving revocation.”

The term “impaired driving license revocation” (which differs slightly from the nomenclature in new G.S. 20-28(a)) is defined in G.S. 20-28.2(a) to include revocations under any of the following statutes:

  • G.S. 20-13.2: consuming alcohol or drugs or willful refusal by a driver under age 21 to submit to a chemical analysis;
  • G.S. 20-16(a)(8b): driving while impaired on a military installation;
  • G.S. 20-16.2: refusal to take a chemical test;
  • G.S. 20-16.5: pretrial civil license revocation;
  • G.S. 20-17(a)(2): impaired driving or impaired driving in a commercial motor vehicle;
  • G.S. 20-17(a)(12): transporting an open container of alcohol;
  • G.S. 20-138.5: habitual impaired driving;
  • G.S. 20-16(a)(7): impaired driving while out of state resulting in revocation of North Carolina driver’s license;
  • G.S. 20-17(a)(1): manslaughter or second-degree murder involving impaired driving;
  • G.S. 20-17(a)(3): felony involving use of motor vehicle involving impaired driving;
  • G.S. 20-17(a)(9): felony or misdemeanor death or felony serious injury by vehicle involving impaired driving;
  • G.S. 20-17(a)(11): assault with motor vehicle involving impaired driving.

New G.S. 20-28(a) refers to the person’s license being “originally revoked,” giving rise to the question of whether the State may establish this element in the case of a defendant whose impaired driving revocation has ended, but whose license is currently revoked because of driving that occurred during an impaired driving revocation.  Suppose, for example, that the defendant was convicted of impaired driving in January 2012.  His license was revoked for one year pursuant to G.S. 20-17(a)(2) (an impaired driving license revocation).  In December 2012, before the impaired driving revocation ended, the defendant was charged with driving while license revoked.  The defendant was convicted under G.S. 20-28(a), and his license was revoked in January 2013 for an additional year pursuant G.S. 20-28.1(a). The defendant is again charged with driving while license revoked in December 2013.  Is this offense a Class 1 or Class 3 misdemeanor?  In my view, this is a Class 3 misdemeanor. The defendant’s license is currently (i.e. “originally”) revoked for driving while license revoked, not for impaired driving.

What happened to the three exceptions under the old law? The exceptions mentioned above in connection with the old law remain in place. Now, however, they do not entitled the defendant to lesser criminal punishment as both driving while license revoked and driving without a license both are Class 3 misdemeanors for offenses committed December 1, 2013 or later. See S.L. 2013-360, Section 18B.14(g). A defendant punished pursuant to G.S. 20-28(a1) still receives the added benefit of reduced insurance points and the lack of an additional period of revocation resulting from the conviction. See G.S. 20-28(a1) (providing that a person punished under its provisions must be treated for driver’s license and insurance rating purposes as if he or she had been convicted of driving without a license under G.S. 20-35).

Charging language. Officers who charge a person with the Class 1 misdemeanor variety of driving while license revoked under G.S. 20-28(a) must allege that the person was originally revoked for an impaired driving revocation. The North Carolina Uniform Citation, AOC-CR-500, has accordingly been revised to include a checkbox for this element.

Appointment of Counsel. As John explained here, beginning with offenses committed on or after December 1, 2013, a court may not impose a punishment other than a fine for a Class 3 misdemeanor if the defendant has three or fewer convictions and no other statute authorizes a greater punishment.  G.S. 15A-1340.23(d).  The impact of the new rule in this context is that an indigent defendant with three or fewer prior convictions who is charged with the Class 3 misdemeanor type of driving while license revoked is not eligible for appointed counsel, whereas an indigent defendant charged with the Class 1 misdemeanor variety remains eligible for appointed counsel.

No waiver. No type of driving while license revoked under G.S. 20-28(a) is an offense for which a defendant may waive appearance and trial and plead guilty by submission of a written form and payment of a fine and costs. (The list of traffic offenses committed on or after December 1, 2013 for which court appearance is mandatory is available here. The waiver list for traffic offenses committed on or after December 1, 2013 is available here.)

The Forgotten Charge. Even if the General Assembly had reduced the punishment for all violations of G.S. 20-28(a), a person who drove a motor vehicle on a highway while subject to an impaired driving revocation of which he or she had been notified by DMV still would have committed a Class 1 misdemeanor pursuant to G.S. 20-28(a2)(1). That provision was enacted in 2006 as part of the Motor Vehicle Driver Protection Act, and, in theory, makes it a bit easier for the State to prove that such a defendant drove while his or her license was revoked. Instead of proving knowledge, the State has only to prove that DMV mailed notice pursuant to G.S. 20-48.

It turns out, however, that defendants seldom are charged under this provision. In 2012, there were 77 charges statewide for violations of G.S. 20-28(a2)(1). In contrast, during that same period, 163,507 charges of driving while license revoked under G.S. 20-28(a) were issued statewide. I don’t know what percentage of people who drive with a revoked license are subject to an impaired driving revocation, but my guess is that it is far greater than the 0.05 percent suggested by this comparison.

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