Civil License Revocations and Double Jeopardy

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.