Civil License Revocations and Double Jeopardy

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As most readers of this blog know, many people charged in North Carolina with driving while impaired and other implied consent offenses suffer the immediate consequence of having their driver’s licenses revoked pursuant to G.S. 20-16.5 by the magistrate at their initial appearance. North Carolina enacted its administrative license revocation procedure as part of the Safe Roads Act of 1983, terming the suspension of licenses of certain persons charged with implied consent offenses “a civil license revocation.” 1983 N.C. Sess. Laws  ch. 435. The measure has since been denominated a CVR by acronym-happy officials and practitioners.  You can read more here about the statutory bases and procedural requirements for CVRs.  This post focuses on the nature and constitutionality of G.S. 20-16.5 revocations when coupled with a defendant’s conviction of the underlying implied consent offense.

When it was first enacted, G.S. 20-16.5 provided for a ten-day driver’s license revocation and restoration upon payment of a $25 fee. Writing about the procedure shortly after its enactment, my colleague Jim Drennan described the legislation as providing an immediate “ ‘slap in the face’  to virtually all drivers charged with DWI” and as making it “more certain that a sanction will be imposed, regardless of the defendant’s status or his lawyer’s expertise.” James C. Drennan, Impaired Driving:  The Safe Roads Act, North Carolina Legislation 1983 (Ann L. Sawyer, ed. 1983).  The National Highway Transportation Safety Administration’s characterization of such revocations is similar.  NHTSA’s 2011 Highway Safety Countermeasure Guide describes such license revocations, which exist in varying forms in most states, as “provid[ing] for swift and certain penalties for DWI, rather than the lengthy and uncertain outcomes of criminal courts,” and lists them as one of the most effective countermeasures to reduce alcohol-impaired driving.  (NHTSA Guide at 1-11).

Predictably, a constitutional challenge to North Carolina’s civil revocation procedure reached the state supreme court within a few years of its enactment.  The court upheld the procedure as comporting with due process and equal protection under the federal and state constitutions and, in so holding, rejected the plaintiff’s claim that the revocation constituted punishment rather than a remedial highway safety measure.  Henry v. Edmisten, 315 N.C. 474 (1986).

Ten years later, the state supreme court in State v. Oliver, 343 N.C. 202 (1996), rejected a defendant’s challenge premised on state and federal constitutional guarantees against double jeopardy to his conviction of impaired driving after his license had been revoked pursuant to G.S. 20-16.5.  The defendant argued that the 10-day civil revocation of his license was punishment for purposes of double jeopardy analysis and that his subsequent criminal conviction amounted to an impermissible second punishment for the same offense.  The court concluded that the license revocation was remedial rather than punitive and described the revocation and accompanying fee as “neither excessive nor overwhelmingly disproportionate responses to the immediate dangers an impaired driver poses to the public and himself.” Id. at 209. The court characterized “any deterrent effect” of the revocation as “merely incidental to the overriding purpose of protecting the public’s safety,” and noted that its decision accorded with the majority of states considering such challenges.  Id. at 210.

After the legislature increased the minimum civil revocation period from 10 to 30 days in 1997, the court of appeals in State v. Evans, 145 N.C. App. 324 (2001), again considered a double jeopardy challenge to prosecution for impaired driving following a civil revocation.  The Evans court rejected the defendant’s constitutional claim, finding that the purpose of the revocation continued to be “remov[ing] from our highways drivers who either cannot or will not operate a motor vehicle safely and soberly.” Id. at 331.  The court noted that while it presently found “no punitive purpose on the face of” G.S. 20-16.5, “at some point, a further increase in the revocation period by the General Assembly becomes excessive . . . . [and] there is a point at which the length of time can no longer serve a legitimate remedial purpose, and the revocation provision could indeed violate the Double Jeopardy Clause.”  Id. at 332.

The court has likewise rejected the claim that civil revocation of a defendant’s commercial driver’s license for impaired driving in a non-commercial vehicle amounts to punishment that bars the subsequent prosecution of the defendant for impaired driving.  See State v. Reid, 148 N.C. App. 548, 549 (2002) (determining that civil revocation of defendant’s commercial license “was the exercise of reasonable regulatory authority designed for an appropriate public purpose,” and that defendant’s later conviction for impaired driving did not constitute double jeopardy).

Notwithstanding the appellate courts’ steadfast refusal to accept double jeopardy challenges premised upon G.S. 20-16.5 license revocations, legislation enacted in 2008 requiring a one-year disqualification for commercial driver’s license holders for civil revocations based upon offenses committed in noncommercial vehicles has reignited the double jeopardy debate.  See S.L. 2008-175 (H 2308) (amending G.S. 20-17.4(a)(7) to disqualify a person from driving a commercial vehicle for one year if the person’s license is civilly revoked for impaired driving regardless of whether the driving giving rise to the civil revocation occurred in a commercial motor vehicle).

I’ve fielded a few inquiries recently about whether the loss of a commercial driver’s license for such a lengthy period based on driving in a noncommercial vehicle alters the analysis of whether such revocations are punishment rather than safety measures, thereby barring criminal prosecution of such drivers after imposition of the CVR.  I’m doubtful that the lengthening of the disqualification period for commercial licenses renders the measure criminal punishment for purposes of double jeopardy.  The court in Reid signaled its willingness to allow more extensive regulation of commercial drivers than that applicable to the general public, stating that that the State has a “greater interest in the public’s safety” when it comes to commercial drivers “because there exists a greater risk of harm.”  148 N.C. App. at 553. Significantly, the Reid court made those statements in the context of considering the constitutional implications of commercial license disqualifications arising from driving in a noncommercial vehicle.  Furthermore, nothing suggests that the legislature intended in 2008 to change the nature of the civil license revocation when it enhanced the punitive effect of a CVR upon holders of commercial driver’s licenses. The act giving rise to these 2008 changes to commercial driver’s license laws was titled “An Act to Amend the Laws Governing Commercial Drivers Licenses in Order to Comply with Federal Law, as Recommended by the Joint Legislative Transportation Oversight Committee.” See S.L. 2008-175. The 2008 amendments to G.S. 20-17.4(a)(7) appear to have been made to ensure that the state retained its authority to issue commercial driver’s licenses and its eligibility for Motor Carrier Safety Assistance Program grant funds. See 49 U.S.C.A. Subt. VI, Pt. B, ch. 313; see also 49 C.F.R. § 383.51, Table 1 (requiring disqualification from operating a commercial motor vehicle for one year for refusing to be tested under the State’s implied consent laws while operating a non-commercial vehicle). Given this impetus for the legislation, it seems unlikely that our courts would infer an intent on the part of the state legislature to exact punishment rather than to regulate.  Confronted with a similar challenge, the Supreme Court of Nebraska in State v. Arterburn, 751 N.W.2d 157 (Neb. 2008), concluded that one-year disqualifications of commercial driver’s license holders based upon administrative license revocations for impaired driving were civil in nature and did not bar subsequent criminal prosecution of drivers for impaired driving.  If and when this issue reaches North Carolina’s appellate courts, I’d wager on a similar result.

10 comments on “Civil License Revocations and Double Jeopardy

  1. A rose by any other name is a rose.

  2. Challenging the validity of ‘Civil Revocations’ under North Carolina General Statute (G.S.) Chapter 20 MOTOR VEHICLES (Ch.20) §20-16.5 (g) (G.S. §20-16.5 (g)).
    G.S. §20-16.5 (g) provides a person charged with an implied consent offence and not yet convicted of Driving While Impaired (DWI) a means to challenge the validity of a ‘Civil Revocation Order’ issued by the State via one of its qualified agents under the premise of protecting the motoring Public. The Revocation Order itself under the portion labeled ‘NOTICE’ clearly states: “You have a right to a hearing to contest the validity of this Revocation before a magistrate or judge. To do so, a written request must be made within ten (1) days of the effective date of the revocation.” It seems that such challenges are rare.
    G.S. §20-16.5 (g) clearly spells out the procedure to challenge the validity of a Revocation Order before a magistrate or judge. It also clearly states: “At the conclusion of the hearing the judicial official must enter an order sustaining or rescinding the revocation. The judicial official’s findings are without prejudice to the person contesting the revocation and to any other potential party as to any other proceedings, civil or criminal, that may involve facts bearing upon the conditions of subsection (b) considered by the official. The decision of the judicial official is final and may not be appealed to the General Court of Justice.”
    Just what would an invalid Revocation Order be? Black’s Law Dictionary Sixth (6th) Edition (BLD) at page eight hundred twenty four (824) defines Invalid as vain; inadequate to its purpose; not of binding force or legal efficiency; lacking in authority or obligation. See also illegal; Void; Voidable. Sic, if the Revocation Order is determined to be invalid by a judicial official it was issued ‘unlawfully’ in vain and is inadequate to perform its purpose (protect People) according to this definition.
    G.S. §20-16.5 (g) seems to be unclear as to what the effect of an order issued by a judicial official rescinding a Revocation Order based solely on a claim of willful refusal. Wherein a judicial official hears the testimony of the State, the person charged, and their witnesses (if any) and determines that the person charged did not willfully refuse then based on this judicial determination issues an order rescinding the ‘Civil Revocation Order’. The order is then entered into the official records without prejudice against any party and is final pursuant to the statute, and cannot be appealed or contested by any party in any court.
    There seems to be a conflict of opinions as to whether the order rescinding the revocation order can be used as evidence in pending criminal actions based on the same claim of willful refusal. One would presume that if a judicial official determined that the ‘civil revocation order’ was illegally or wrongfully issued, was void and or a voidable judgment rendered by a State actor (clerk, magistrate, hearing officer) another judicial official of a higher rank within the same court concerning the same set of facts and circumstances that it would be admissible as evidence.
    What is the purpose of challenging the validity (lawfulness) of a Civil Revocation Order issued by a magistrate at the initial appearance in the district court before a district court judge as prescribed by G.S. §20-16.5 (g) if it cannot be used as evidence as to the lawfulness of the Civil Revocation Order issued at the initial appearance in subsequent hearings pertaining to the same set of facts and circumstances?

  3. Points to consider:

    Driver who wins his driving while impaired case still has a one year revocation.

    No due process afforded driver to challenge the revocation given by DMV; all other revocations/suspensions/disqualifications provide for right to hearing in the letter from DMV other than those based on convictions

    Remedial purpose for CDL is not advanced. Compare a CDL driver who is driving a bus loaded with children who stops and purchases a beer. Driver gets on the bus, begins driving and drinking the beer. Driver is stopped, ticketed and convicted. There is only a 10 day revocation of CDL. Which is more dangerous the bus driver or the driver who was driving his personal vehicle, charged with DWI and wins. No brainer. However, the DWI victory driver is disqualified for one year. Makes no logical sense.

    We and the court must ignore common sense to say that a 12 month disqualification of CDL is not punishment. There is no statistical evidence that would support the allegation that a driver who gets a DWI on his personal vehicle is somehow a less careful or more dangerous driver thereafter when driving his CDL vehicle.

  4. The confusion I am encountering is that under North Carolina General Statute (G.S.) Chapter (Ch.) 20 MOTOR VEHICALS (MV) §20-16.2 (d) Consequences of Refusal; Right to Hearing before Division; Issues. – Upon receipt of a properly executed affidavit required by subsection (c1), the Division shall expeditiously notify the person charged that the person’s license to drive (DL) is revoked for 12 months, effective on the tenth day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.
    In this matter a revocation order was issued immediately after the person was charged by a magistrate at the initial appearance which was effective immediately. The person’s DL was seized right there on the spot by the magistrate. The revocation order issued by the magistrate on form ACC-CVR-2 does not mention the ‘right’ of the person charged to request a Hearing before the Division before the effective date of the order. ‘This of course would have been physically impossible as the revocation issued by the magistrate was effective immediately’. What is the purpose of the language in the Statute if it is impossible to meet?
    The form detailed supra does mention the charged person’s ‘right to challenge the validity’ of the revocation order before a magistrate or judge within ten (10) days. The charged person did in fact challenge the ‘validity’ of the order using a AOC-CVR-5 form within the 10 day period set forth at G.S. Ch. 20 MV §20-16.5 (g) before a judge. A hearing was had on the sixteenth (16th) day after the effective date of the magistrate’s order wherein the judge determined the magistrate’s ‘civil revocation order invalid’.
    ‘The judge determined that the charged person did not refuse, or willfully refuse’ to fully comply with the State’s implied consent laws and its requirements of submitting to any chemical analysis test or any other tests to check for alcohol or other impairing substances. In short it was the opinion of the judge that the affidavit entered into the records was false, misleading, or insufficient and the ‘civil revocation’ issued by the magistrate was rescinded.
    The law allows the charging officer to choose the type of test or tests to be administered. The officer chose to use a device known as an intoximeter to text the charged person. The intoximeter requires that a person has the capacity to exhale a volume of air within preset parameters of time to make it function properly. Some people simply are incapable of meeting these requirements to make such a device function properly. The State does not have a law that requires that all people licensed to drive in the State to have the ability to make such a device function properly.
    In this matter after hearing the testimony of the Assistant State Attorney (DA), the charged person, and their witness the judge determined that the charged person was a person incapable of making the device function properly. The person charged was incapable of delivering a sufficient sample for the machine to function because of life long breathing problems. The charging officer had the means to request the charged person to submit to others tests (I.E. Blood test or Urine test) in order to obtain and secure any evidence of operating a private vehicle while under the influence of an impairing substance in violation of any State Law, and failed to request the charged person to submit to further chemical analysis via another means.
    The judge completed the AOC-CVR-5 form and rescinded the ‘civil revocation’ required by the State Law to protect the motoring public from a person deemed to be a hazard on the Public Highways. The judge determined that the charged person was not a threat to the motoring public based on the information contained in the officer’s affidavit, testimony given by DA, the charged person, and their witness. A full year and four months latter both the DMV and the State are still attempting to prosecute the matter of DWI without any evidence of impairment of the person that was charged.
    What is the purpose of challenging the validity of a revocation order in a district court if after a judge has determined the revocation to be invalid the State and DMV are going to prosecute a DWI charge anyway? The entire case is based on a false and misleading claim, made by an officer via an affidavit that a judge has determined to be void or insufficient.

  5. The legislature’s true intent was to maintain funding, with little or no consideration of the affect on CDL drivers. Regardless of the legislature’s intent, the one year absolute revocation of a CDL is a punishment. It also seems the statute violates equal protections, because all licenses to operate as a professional should be revoked prior to conviction. What about the nurse that handles and administers pain medicine? Or the pharmacist? Doctor? Electrician? Attorney? If their license to operate as a professional was revoked by statute for a DWI charge alone, I’m sure they would all agree the action was a punishment. If the revocation of CDLs is ethical, constitutional and acceptable, then class C drivers should be applied the same absolute revocation upon being charged. Anything less is discrimination. You above quoted the court stating “that at some point, civil revocation could become a penalty worthy of double jeopardy or to be considered a punishment”. Is the court then not showing favor to Class C drivers?
    What if the CDL driver isn’t convicted? Would the one year revocation prior to trial then be considered a punishment? Suppose the arresting officer had no probable cause, how many constitutional rights would then have been violated? Is it fair that a motorist charged with speeding, has the right to hearing and defense before a judge, but the CDL driver losing his means of income doesn’t?
    I was a CDL professional. I picked up and delivered from Florida to Boston. I delivered on the streets of Washington D.C. and Cambridge in a full size tractor and 53′ trailer with a lift gate. I was a professional and never operated a commercial vehicle under the influence. I’m awaiting trial. I have made four appearances. I could have been driving commercially for three months now. The CDL revocation has already cost me $9,000 in lost income. I’m still searching for dependable employment. I have sold my personal Ford F-150 to survive and I’m having to move in with my brother. I have been punished more pre-conviction than Class C drivers after conviction. I have voluntarily taken my 20 hours of classes and haven’t drank any alcohol in over 7 weeks. This experience has been so painful, more than I can convey.
    The statute violates due process and equal protections. The “implied consent” to revoke a professional license for one year pre-conviction is an abuse of power. The state’s action has not been civil, but totalitarian.

  6. I am a Class B CDL operator and I recieved a DWI cititation in October 2010 while off-duty as a NC school bus driver. In May of 2011, I attended a court hearing and the DWI charge was dismissed and a month later, all charges were expunged by the court. I also recieved a 30-day civil revocation for the DWI charge. I got my CDL license renewed in June 2012 and attempted to regain my school bus certification. I subsequently called the NC DMV to inquire about my school bus certification because I had been unsucessful in regaining my school bus assignment. I was told by a NC DMV hearing officer, that the 30-day revocation would remain a part of my driving history until my renewel date of 3/2016. I was quite devastated by this revelation. I assumed that I would be able to regain my school bus assignment once the matter had been resolved. Unfortunately, NC does not see it that way and will continue to punish me for this infraction.

  7. Stanley;

    As your case exhibits, the better question should be whether the citizenry’s rights as protected by the eight amendment of our constitution are being abused by our current legal system not whether it is a case of double jeopardy. At what level of remediation or punishment does the court system risk exceeding what is considered extreme and cruel punishment? When does the court system have to question the legality of costing Americans the right to maintain legal and just employment as part of an individual’s right to the pursuit of happiness? When you choose to take away a person’s priviledge to drive as a remedial action, you also endanger that person’s right to practice their religious freedoms at the church or synagogue of their choice, you definitely endanger their ability to access their workplace and therefore endanger their entire economic life situation. When our court systems disregard the rights of individuals to pursue free trade and commerce amongst ourselves and with our employers they are imposing restrictions upons individuals that exceed what one would consider fair and just punishment (or remediation as the case may be).

  8. i have been unemployed for 3 years. can not get a job anywhere. i was not drinking or under the influnce of any drugs. i had a arguement with a supervisor. i had quit right after the arguement. he told me to go take a ramdom. i told him no. i left and got a job DRIVING a truck. 1 month later i got a letter from DMV that my class A (CDL) have benn revoked. the company that i was with let me go and i have not been able to get a job for 3 years. DMV was not helpful, because i appealed it. i was told that he did not write the law. i went to a SAP class to get my CDL’s back. the SAP teacher even told me that (he seess that i do not have a alchol or drug problem. i got reinstated my CDL’S but no work for three years and still getting no’s. about to lose my house. i have had to sell things to survive.

  9. Defendant is racing through town, blows an .18 and has three year old in car. She is charged with DWI and on a separate ticket with child endangerment. Should court dismiss the second charge? arrest judgment on it?

  10. What does it mean when your DMV reports says: DISQ: civil revocation while operating CMV/CDL holder? In NC, it appears to mean that under no circumstance will your record be cleared because you held a CDL while operating a vehicle because you had a CDL. In my case, all reference to the charge was dismissed and expunged, except for what they say is a”disqualification” that will never be removed. Explain.

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