NC Supreme Court Reverses State v. McKenzie: CDL Disqualification Does Not Bar DWI Prosecution

The court of appeals’ decision last January in State v. McKenzie was big news in the DWI world. The state’s intermediate appellate court held the one-year disqualification of a defendant’s commercial driver’s license (CDL) stemming from charges that he drove his personal vehicle while impaired amounted to criminal punishment. Thus, the court of appeals concluded, the constitutional prohibition against double jeopardy prevented the defendant from subsequently being criminally prosecuted for the impaired driving charge itself. The decision, issued 2-1 over a dissent, was a surprise to many, including me. If it stood, it meant that thousands of commercial driver’s license holders who were disqualified as commercial drivers upon being charged with impaired driving could not thereafter be prosecuted. The North Carolina Supreme Court quickly issued a writ of supersedeas and stayed enforcement of the court’s judgment.

Per Curiam Reversal. On Friday, the state supreme court in a per curiam opinion adopting the reasoning of the dissenting opinion below reversed the decision of the court of appeals.

Judge Robert C. Hunter’s dissent below. The defendant in McKenzie argued two grounds for dismissal of his DWI charges. First, he argued that prosecuting him for DWI after revoking his commercial driver’s license for a year subjected him to multiple punishments for a single offense, thus violating double jeopardy. Like the majority, the dissent employed the seven-factor analysis from Hudson v. United States, 522 U.S. 93 (1997) to evaluate whether the CDL disqualification was civil or criminal in nature. Unlike the majority, the dissent concluded that under this test the CDL revocation was a civil sanction rather than a criminal penalty.

Hudson inquiry. The Hudson analysis begins with a two part inquiry:

(A) Did the legislature indicate a preference for a criminal or civil label?

(B) If the legislature indicated that the sanction was civil, was it so nevertheless so punitive as to be transformed into a criminal penalty?

Seven-factor test. Seven factors then are employed to evaluate the second question:

1. Was the sanction an affirmative disability or restraint?

2. Was it historically regarded as punishment?

3. Is a finding of scienter required?

4. Does the sanction promote retribution and deterrence, the traditional aims of punishment?

5. Is the behavior to which it applies already a crime?

6. May a purpose other than criminal punishment rationally be assigned to the sanction?

7. Is the sanction excessive in relation to its non-punitive purpose?

As applied to G.S. 20-17.4. The dissent noted that while G.S. 20-17.4, the statute requiring a one-year CDL disqualification upon issuance of a civil license revocation arising from an implied consent charge, did not label the revocation as criminal or civil, the state supreme court long has viewed driver’s license revocations as civil rather than criminal in nature and has focused on their remedial purpose. The length of the CDL revocation period did not change this analysis. CDL penalties generally are more severe than licensure penalties for other drivers because of the greater threat of danger posed by vehicles driven with a commercial license—among them 18-wheelers.

With regard to the second inquiry under Hudson, the dissent determined that the defendant did not establish the “clearest proof” necessary to transform a civil penalty into a criminal one. The defendant conceded that first three factors did not support a finding of criminal punishment. As to the fourth factor, the dissent viewed the deterrent effect of the CDL disqualification as substantially outweighed by the overriding remedial purpose of protecting the public from the great harm posed by commercial vehicles. The dissent viewed the deterrent effect as further mitigated by the fact that the statute only disqualified the defendant from driving a commercial vehicle, not a private passenger vehicle.

Factor five weighed in on the criminal sanction side of the scales, as the behavior giving rise to the revocation is a crime. But factors six and seven supported the notion that the sanction was civil.  The dissent again cited public safety as the remedial purpose and determined that a one-year CDL disqualification was not excessive. The sanction applies only to commercial driver’s licenses, an arena in which the state has a greater interest in the public’s safety than with the driving of regular passenger vehicles.

Conclusion. Thus, based on its application of Hudson, the dissent concluded that prosecuting the defendant on the underlying DWI charges would not violate double jeopardy. The Supreme Court’s adoption of this reasoning affirms the earlier determination by Superior Court Judge Phyllis Gorham that principles of double jeopardy did not bar the defendant’s prosecution.

Due Process concerns. The defendant also argued that his one year CDL disqualification violated his due process rights. The majority of the court of appeals concluded that this claim was moot because the one-year revocation already had terminated. The dissent applied an exception to the mootness doctrine to allow consideration of the issue, but nevertheless found that the defendant’s claim failed as it was not properly before the court. The defendant could not challenge the propriety of the civil CDL disqualification in the criminal proceeding, but instead was required to raise any such claim in a civil action against DMV. Thus, the dissent concluded that the superior court erred in considering the defendant’s due process claim. The dissent noted, however, its concern that the failure to provide the defendant with any procedural mechanism to challenge the disqualification may violate due process.