[Editor’s note: Sorry that there was no post yesterday. I was travelling and didn’t have reliable internet access. We’re back on track today.]
The misdemeanor offenses of driving after notification of an impaired driver’s license revocation or driving after failing to appear for two years for an implied consent offense were proposed by the Governor’s Task Force on Driving While Impaired and were enacted by S.L. 2006-253 effective for offenses committed on or after December 1, 2006.
The first of these offenses, codified in G.S. 20-28(a2)(1), prohibits driving on a highway by a person whose license is revoked for an impaired driver’s license revocation after DMV has sent notice of the revocation pursuant to G.S. 20-48. G.S. 20-48 permits DMV to provide notice by mailing a notice to a person at his or her address as shown by DMV records. Notice by mail is deemed completed after four days from the mailing.
The second offense, codified in G.S. 20-28(a2)(2), is failure to appear for two years from the date of the charge after being charged with an implied consent offense.
Over the past few months, I’ve fielded numerous inquiries regarding the criminal offense of failing to appear for two years after being charged with an implied consent offense. First, may a defendant charged with an implied consent for which he or she already had failed to appear for two years as of the statute’s effective date be charged with the commission of this offense? Jeff wrote about that issue here, recognizing that charging a person based on an implied consent offense charged before December 1, 2004 for which the person failed to appear for two years before the statute’s effective date—December 1, 2006—“arguably . . . is precluded by the Ex Post Facto clause” since the offense was complete before the statute became effective on December 1, 2006.
Jeff also discussed at length the application of the two-year statute of limitations to such charges, depending on whether the offense is viewed as completed upon the expiration of two years or, instead, continuing until the defendant reappears.
May persons charged with implied consent offenses on or after December 1, 2004 but before December 1, 2006 who fail to appear be convicted of violating G.S. 20-28(a2)(2) since some portion of the two years expired after December 1, 2006? If so, a defendant charged with an implied consent offense on December 1, 2004 for which he or she failed to appear would arguably have committed and completed a violation of G.S. 20-28(a2)(2) the day after its enactment, even though, if the case was dismissed by the State with leave, it would not have appeared on the calendar on or after December 1, 2006.
Did the legislature intend this result? The effective date clause of S.L. 2006-253 isn’t particularly revealing as it simply provides that G.S. 20-28(a2) “becomes effective December 1, 2006, and applies to offenses committed on or after that date.” Generally statutes are presumed to act prospectively only unless retroactive application is clearly expressed or arises by necessary implication from the terms of the legislation. State v. Green, 350 N.C. 400, 405 (1999). It is unclear, however, whether our appellate courts would view application of G.S. 20-28(a2) to failures to appear completed within two years of December 1, 2006 as retroactive application since the two-year time period was not complete at the time of enactment. Cf. State v. Cowan, ___ N.C. App. ___, 700 S.E.2d 239, 244 n. 3 (2010) (internal quotations omitted) (noting that principle of prospective application governs statutory provisions that “alter the legal consequences of conduct or transactions completed prior to its enactment”).
It strikes me as reasonable to read G.S. 20-28(a2)(2) as requiring that the entire two year period, along with the other elements of the offense—the charge and the failure to appear—occur after G.S. 20-28(a2)(2) became effective. The Arizona Supreme Court recently interpreted in like manner a statute providing for waiver of appeal from a “final judgment of conviction . . . if the defendant’s absence prevents sentencing from occurring within ninety days after conviction,” reasoning the conviction and the ninety day period had to occur after the statute became effective. State v. Soto, 241 P.3d 896 (Ariz. 2010) (en banc). On the other hand, G.S. 20-28(a2)(2) could fairly be interpreted to require only some continuing failure to appear on or after December 1, 2006. Perhaps North Carolina’s appellate courts will definitively answer this question.
I’ve also been asked whether a person charged with an implied consent offense violates G.S. 20-28(a2)(2) if he or she appears for court on one or more occasions, but thereafter fails to appear for a period of two years. I don’t think the plain language of the statute supports prosecution in such cases. G.S. 20-28(a2)(2) prohibits “fail[ing] to appear for two years from the date of the charge after being charged with an implied-consent offense.” (emphasis added). Thus, the two years is measured from the date of the charge, not the date the person failed to appear. When the person appears within the two-year time frame, he or she hasn’t failed to appear for two years from the date of the charge. To construe the statute as criminalizing failure to appear for any two-year period that occurs post-charge renders “from the date of the charge” surplusage, an interpretation that disfavored by the rules of statutory construction.
Are there other issues related to the interpretation of G.S. 20-28(a2) that I’ve failed to identify? If you’ve litigated these or other issues, please share your thoughts.