Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense

Nearly 15 years ago, the General Assembly created the misdemeanor offense of failing to appear for two years for an implied consent offense. See S.L. 2006-253 (enacting new G.S. 20-28(a3), effective for offenses committed on or after December 1, 2006). The new provision was proposed by the Governor’s Task Force on Driving While Impaired in order to impose special sanctions for a person who fails to appear in court for this particular kind of motor vehicle offense. Those sanctions include driver’s license revocation for a person convicted of a violation of G.S. 20-28(a3)(2).

In the early years after the statute was enacted, there were many questions about which offenses it applied to. Offenses charged before December 1, 2004 for which the person had already failed to appear for two years before the statute’s effective date? Arguably not, for ex post facto reasons, as Jeff opined here. What about offenses charged a bit later for which the defendant already had failed to appear before December 1, 2006? Perhaps not, given the presumption of prospective application, as I wrote here. More recently questions have arisen about how to calculate the two-year statute of limitations for such an offense. Suppose, for example, a defendant was charged with DWI on January 1, 2017. The defendant failed to appear in court. On June 2, 2021, the State charged the defendant with failure to appear for two years after being charged with an implied consent offense. Does the two-year statute of limitations in G.S. 15-1 bar the prosecution?

The answer to this question depends upon the beginning date for calculating the two-year statute of limitations. There are two possible interpretations.

Argument A. One interpretation is that the offense defined by G.S. 20-28(a3)(2) is completed upon the expiration of two years from the date of the charge. Under that interpretation, the statute of limitations begins to run two years after the cha­­­­r­­­ge and expires four years later (if no charges are issued in the interim). So, in the example above, the statute of limitations would have expired on January 1, 2021.

Argument B. The second interpretation is that a violation of G.S. 20-28(a3)(2) is a continuing offense that is not completed until the defendant appears to answer the charges. Under this interpretation, the statute of limitations only begins to run once the defendant appears to answer the charges. The State must file any charges within two years of that date.

When is an offense a continuing offense? The North Carolina Supreme Court has defined a continuing offense as a “breach of the criminal law not terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive similar obligations or occurrences.” State v. Johnson, 212 N.C. 566, 570 (1937).

Put another way, “a continuing offense has been committed when the defendant, over some period of time and, possibly, in a number of different places, has committed all of the elements necessary to establish criminal liability.” State v. Allah, 231 N.C. App. 88 (2013).

Continuing offenses. North Carolina’s appellate courts have determined that the following activities are continuing offenses:

• Possession of stolen property (State v. Davis,302 N.C. 370, 275 S.E.2d 491 (1981));
• Willfully neglecting and refusing to support child (State v. Johnson, 212 N.C. 566 (1937));
• Maintaining a dwelling for the use of a controlled substance (State v. Grady, 136 N.C. App. 394 (2000));
• Kidnapping (State v. White,127 N.C. App. 565 (1997); and
• Conspiracy (State v. Fink,92 N.C.App. 523 (1989)).

A completed offense. In contrast, the North Carolina Court of Appeals has determined that rape is not a continuing offense. State v. Small, 31 N.C. App. 556, 558–59 (1976) (“The offense of rape is terminated by a single act or fact and the evidence in the case at bar was sufficient to establish two distinct offenses and to support the verdict of guilty in both cases.”)

Nearly all of the offenses mentioned above are felonies, so their status as a continuing offense was not significant for statute of limitations purposes. (There is no statute of limitations for felony offenses in North Carolina.) Instead, whether the offense was continuous was significant for determining whether two offenses (such as receiving stolen property and possessing stolen property) were distinct crimes for which separate punishment could be imposed or whether ongoing criminal conduct could again be prosecuted.

One oddity of the jurisprudence noted above is that the court in Johnson determined that because willfully failing and neglecting to support a child was a continuing offense, the defendant could be prosecuted for subsequent violations. In other cases, the court has explained that the characterization of an offense as continuing prevents the prosecution from dividing a single continuing criminal act into multiple charges. White, 127 N.C. App. at 570; see also State v. Grady, 136 N.C. App. 394 (2000) (“The dearth of reported North Carolina cases involving more than one count of maintaining a dwelling suggests that district attorneys tacitly recognize that the offense is ongoing and accordingly exercise restraint in drafting indictments.”)

North Carolina’s appellate courts have not considered whether failure to appear in violation of G.S. 20-28(a3)(2) (or G.S. 15A-543, which criminalizes willful failure to appear more generally) is a continuing offense.

Other jurisdictions have reached differing conclusions about whether failing to appear is a continuing offense.

Courts in the cases below determined that failure to appear was a continuing offense.

• United States v. Camacho, 340 F.3d 794 (9^th Cir. 2003) (holding that the crime of failure to appear at trial “is a continuing offense as a matter of law” and thus concluding that the sentencing guidelines enacted after the date the defendant failed to appear).
• United States v. Green, 305 F.3d 422 (6th Cir.2002) (stating that in a failure to appear offense, “[l]ike the crime of escape, the crime is not complete on the day that a defendant fails to appear for sentencing, but rather continues until the defendant is apprehended and finally appears for sentencing;” thus concluding that the defendant was required to be sentenced under guidelines that became effective following the date on which he initially failed to appear for sentencing).
• People v. Casas, 104 N.E.3d 425 (Ill. 2017) (holding that the offense of violation of a bail bond encompasses the initial departure and failure to return to court when ordered to and thus is a continuing offense)
• Woolsey v. State, 906 P.2d 723 (Nev. 1995) (concluding that violation of bail bond is a continuing offense and reasoning that “[t]o allow [the defendant] to avoid prosecution for [the bail-bond violation] simply because he eluded arrest long enough to surpass the three year statute of limitations is contrary to the purposes of [the violation-of-bail-bond statute] in particular and bail in general.”)

Other courts have reached a different conclusion. See, e.g., State v. Ojiaku, 424 S.W.3d 633, 639 (Tex.App.2013) (concluding that bail jumping was not a continuous offense); People v. Landy, 125 A.D.2d 703, 704 (N.Y.App.Div.1986) (same)).

Given the lack of controlling precedent, what’s your take on the correct answer?