Not So Fast:  Dismissal of DWI Charges for Failure to Schedule Trial in 30 Days  

Defendants who drive while impaired while their licenses are revoked for another impaired driving offense or who drive while impaired without a license and without car insurance risk more than criminal prosecution. The vehicles they drive must be seized, and, if they are convicted, will be ordered forfeited. To speed up the forfeiture process, DWI cases involving vehicle forfeitures must be scheduled within 30 days of the offense. But they rarely, if ever, are. Are defendants entitled to relief when the statutory scheduling directive is ignored?  And can that relief come in the form of the dismissal of criminal charges?

The law.  To expedite the determination of whether a motor vehicle seized pursuant to G.S. 20-28.3 is subject to forfeiture, G.S. 20-28.3(m) requires that district court trials of impaired driving offenses involving forfeiture of motor vehicles be scheduled on the arresting officer’s next court date or within 30 days of the offense, whichever comes first.

Once scheduled, the case must not be continued unless the following conditions are met:

(1) a written motion for a continuance is filed with notice given to the opposing party before the motion is heard;

(2) the judge makes a finding of a compelling reason for the continuance; and

(3) the motion and finding are attached to the court case record.

The practice. The trial priority provisions frequently are ignored. DWI cases, like other criminal matters, are routinely calendared for trial more than 30 days after the offense.  Compliance with the continuance rules in G.S. 20-28.3(m) is no more robust.  Indigent defendants who qualify for court-appointed counsel typically present their affidavits of indigency at the first setting of the case. Obviously, an attorney who has not even been appointed, much less entered an appearance in the case, cannot be armed at that first setting with a written motion for a continuance.  Nevertheless, such cases are continued, as they must be to preserve defendants’ rights to be represented by counsel.

I doubt that compliance with the written continuance motion requirement is significantly higher among defendants who have hired counsel before the first setting of the case. Instead counsel typically orally requests a continuance, which the State does not oppose.  The trial court then sets a mutually agreed upon date for trial.

The issue.  A motor vehicle owned by and seized from a DWI defendant may only be returned to that defendant before trial if the defendant files a petition with the clerk and thereafter demonstrates that his license was not revoked for an impaired driving revocation or (if this is the basis for the seizure) that he had a valid driver’s license and/or insurance at the time of the offense.  G.S. 20-28.3(e2).

If a defendant cannot make such a showing, she may only regain possession of the seized motor vehicle following acquittal or a post-trial forfeiture hearing.

DWI defendants whose trials are scheduled without regard to the trial priority provisions in G.S. 20-28.3(m), sometimes move for dismissal of the criminal DWI charges. The argument made in support of such relief is that, while no remedy is provided by statute, the court must fashion some relief to provide an incentive for compliance. This argument invokes the rationale for suppressing chemical testing results that are obtained without statutory compliance. See State v. Shadding, 17 N.C. App. 279, 282-83 (1973) (“Such rights of notification, explicitly given by statute, would be meaningless if the breathalyzer test results could be introduced into evidence despite non-compliance with the statute.”). These motions sometimes are made by defendants who themselves have participated in the noncompliance by moving in open court to continue the case without the support of a written motion.

The authority to dismiss. Dismissal of charges is drastic relief–to be sparingly granted.  See Official Commentary to G.S. 15A-954. No statute authorizes dismissal of charges for a mere statutory violation.  And while a line of cases beginning with State v. Knoll, 322 N.C. 535 (1988), contemplates dismissal of impaired driving charges for the violation of statutory rights related to pre-trial release, neither Knoll nor its progeny extends such relief to cases involving other types of statutory violations.  Indeed, the common remedy for statutory violations related to the gathering of evidence in criminal cases is suppression of the gathered evidence, not dismissal of the underlying charges. See G.S. 15A-974(a)(2); Shadding, 17 N.C. App. at 282-83; State v. White, ___ N.C. App. ___, 753 S.E.2d 698, 704 (2014) (deeming suppression an appropriate remedy for violation of statutory requirements governing checkpoints); see also State v. Wilson, __ N.C. App. __, 736 S.E.2d 614 (reversing trial court’s dismissal of DWI charges when no basis for dismissal under G.S. 15A-954(a) existed).

Why it doesn’t apply here. The trial priority provisions in G.S. 20-28.3(m) appear to be aimed at ensuring a prompt determination of the forfeiture issue.  If such prompt determinations were to occur (and they seldom do) the property interests of the party entitled to the motor vehicle or its proceeds would be protected.  Most of the time the entity whose property interest is devalued as a result of the delayed trial is not the defendant-motor-vehicle-owner. Instead it is the county schools, who receive the proceeds of any motor vehicle ordered forfeited.

Moreover, it is hard to imagine how the lack of compliance with G.S. 20-28.3(m) would ever prejudice the defense of the criminal matter.  And in none of the circumstances I’ve heard about has the defendant argued she was so prejudiced.

Thus, given the drastic nature of the relief sought, the lack of any authority in the statutes or case law to grant such relief, and the lack of prejudice to the defendant, dismissal of criminal charges does not appear to be an appropriate remedy for violations of G.S. 20-28.3(m).

Are we left without a remedy?  Perhaps so.  And, since neither the defendant nor the State typically is harmed by the noncompliance (and both are complicit in it), that may be fine with everyone.  In the rare case in which a defendant’s interests are harmed by the delayed forfeiture hearing (which could occur if the statutory requirements for seizure did not exist) and the defendant was not complicit in the delay, it may be appropriate for the court to fashion some form of relief related to the return of the motor vehicle.

17 thoughts on “Not So Fast:  Dismissal of DWI Charges for Failure to Schedule Trial in 30 Days  ”

  1. Typically the harm is unlawful taking of property. The clerk denies out-of-hand the innocent owner’s petition for return of her car. The trial judge then refuses to hear the innocent owner’s petition for return of her car. The innocent owner is stuck. She doesn’t have a criminal charge to dismiss; she just had her property stolen by the police.

    In another common circumstance when the police make the mistake of seizing a DWI defendant’s car unlawfully (defendant not suspended for impaired driving offense) and the State refuses to return the car, there is a reasonable argument that the seizure is outside of due process of law and is actually punishment for the DWI charge, which punishment precedes trial. That causes double jeopardy issues, which in turn lead to constitutional grounds for a dismissal. The violation isn’t merely statutory because the statutory violation is also a due process (constitutional) violation which leads to definite harm (the seizure of the car). Paying civil damages for conversion of the vehicle might remedy the harm, but without that remedy dismissal of the criminal charges is a reasonable remedy.

  2. Its funny this post came up today because I was very recently hired on a case with this very issue. The Defendant was charged on 3/6 and his Court date scheduled for 5/19. I found out that the charging officer’s next scheduled Court date is actually 3/25, so I sent a letter to the DA advising them of the calendaring requirements in this statute, that the Officer’s next date is 3/25, and that I will be ready for trial on that date. I also went ahead and filed a Motion to Suppress the stop and PC to arrest, and told my clien to be in Court that day.

    Oh, and its a blood test case.

    I don’t know what our DA will do. We have a new head DA, and he quickly ran off all the old personnel and replaced them with his own people, and their attitude toward most things has been, in essence, that the rule simply do not apply to them. Based on that, I assume they will ignore my letter.

    I plan on getting someone to verify my client’s presence in Court on 3/25, and then at the next court date, I plan to start filing Motions to Dismiss with my letter to the DA and an Affidavit attesting to my client’s presence on 3/25.

    The purpose of the statute is clearly to minimize someone’s loss and/or expense associated with the seizure, and since this is a blood case and thus will result in L-E-N-G-T-H-Y delay due to the inability of the State lab to get results back in anything resembling a timely fashion, those losses/expenses will necessarily excessive before the case can be heard.

    I have no idea what will come of this, but I’m going to give it a shot. Ideally, I would like a dismissal, but for reasons outlined in the post, that seems pretty unlikely. But will the Court make the State proceed without blood test results? Will the Court return my client’s car to him pre-trial? Will the Court waive storage fees post trial if we win?

    There must be some remedy which can be fashioned, even if it is not dismissal.

    • I feel like you’re going to lose some credibility when you say “I plan to get someone to verify my client’s presence in court on 3/25.” If you’re claiming to be ready to proceed with trial, and you yourself are not there, then clearly you were not ready for trial, is going to be the state’s argument.

      • You misunderstood me. I will be there as I have several other cases on that day and am fully ready for trial. My client will be there as well. I plan to get another person to verify his presence that day in writing because I anticipate that sometime, down the road, when I am arguing my Motion to Dismiss, that our ADA will claim that the case couldn’t have been done that day because the wasn’t present.

        I don’t want to put myself in the position of becoming a witness to prove his presence in Court, so I’m going to ask another lawyer to fill that role.

        It will probably never be an issue, but just in case . . .

  3. Shea:
    Please reconsider this blog post, you lose credibility trying to excuse inexcusable violations of individual rights. This has nothing to do with Knoll as that was a right to gather evidence. The issue is the unconstitutional taking without due process. The legislature was very clear that to protect the due process rights of the defendant from whom a vehicle is seized, the trial must be set within 30 days (with very restrictive ability to continue the case). This provision is all that saves the taking from being an unconstitutional taking without due process of law. It is the savings provision, without it the Defendant loses his vehicle for an indefinite amount of time without a right to a hearing on the merits of the seizure.

    The statutory violation is a Due Process Violation and in addition constitutes punishment of the defendant The wrongful taking of property in violation of the law, and because of the DWI. The Defendant is the one with the rights being protected, not the State. To argue that the Defendant regular waives this when asking for court appointed counsel, or that there are ineffective defense attorneys, does not somehow even the score and make violating another person’s rights justifiable.

    Each individual citizen accused has a right to a hearing on the taking of property. This trial priority is set up to protect constitutional rights, if it were not there, and when it is not followed, the Statute becomes an unconstitutional taking because it does not afford the defendant a hearing on the issues of the taking. Please rethink this.
    Best wishes,

  4. This post misses a significant point in my mind. The statutory scheme essentially defines the due process rights. So, a violation of the statutory scheme is not a mere statutory violation. Further, the NCSC made very clear in State v Carter that Art. 1 Sec. 18 of the NC Constitution requires that rights in North Carolina have a remedy. Suppression is not a viable remedy, and immunity issues may well prevent a civil claim as a remedy. So, unless or until the GA crafts an appropriate statutory remedy the only remaining remedy under NC law would be dismissal of the criminal charges.

  5. The State controls the court docket. The legislature put in place a specific calendaring rule in this unusual situation where the State has taken/seized a person’s property without any hearing, Judge’s ruling, or other due process protections. This calendaring rule is the only due process that person has. If there is no recourse for the person if the State ignores this calendaring rule, that essentially excuses the State for ignoring/violating the law. Why is it OK for the State to ignore or violate this statutory requirement?

  6. Of course the State controls the docket, but they do not have exclusive control over what is put on the calendar. File a motion to dismiss, notice it on for hearing, be sure the criminal clerks put it on the regular or add on calendar. The various courts of this State shall remain open!! thus sayeth the NC Constitution.

  7. So… Shea Denning feels that there is no remedy for a violation. This is news to no one who has ever read her posts. It would be news if she ever decided there was a limit on the State’s power. Of course, when the State pays your salary, I guess it makes sense that you would always take their side

  8. I fear that this post explains away violation of the statute with a shrug of the shoulders and “well, we do it all the time” (despite a lack of actual statistics). If the State does not have the time or resources to take away the property of citizens legally, then it should not do so at all. Please let us not forget that these are citizens who are presumed innocent.

  9. “Most of the time the entity whose property interest is devalued as a result of the delayed trial is not the defendant-motor-vehicle-owner. Instead it is the county schools, who receive the proceeds of any motor vehicle ordered forfeited.” That analysis ignores the interest of the individual who actually purchased the car. Maybe a remedy for the statutory/due process violation would be the return of the car to its owner.

  10. Taking of one’s property prior to due process is a constitutional issue. The question is not if the criminal charges should be dropped, but rather if a change to the process involving seizure should be made. The 6th Amendment states our right to a speedy trial, but this process guarantees a speedy punishment.

  11. These are some seriously great comments. One problem is that the majority of Defendants facing this issue will receive Level A1 or 1 sentences if convicted. It’s a rare client facing 120 days in jail that wants their day in court within thirty days of the date of offense. Thus, the statute is a Catch 22. Either push for a trial quickly and possibly face immediate consequences without time to re-arrange your life, or give up your car. This is hardly the kind of choice that should be presented to someone presumed innocent.

  12. This has happened to me. As an “innocent owner” of a car, I filed paperwork with the clerk of the court in Dare County in December of 2016. I filed charges against the person who took my car as well. I was denied by the Clerk of the Court the release of my car based on the fact as I was told, “it is an asset to the NC School Board” because you do not have a lien on the car. I hired an attorney for $1500 to try to get my car, he did nothing but told me “You will most likely never see your car again”, after I paid him. Prior to that, a judge put a cash bond on my car for $11,800.00 which I could not afford as no bondsmen in Dare County would help me out as they never heard of this procedure.

    To date, the person charged of the DWI has not been to court and charged. I have heard nothing from the state or the court system about where my car, much less anything from my attorney in many months. What I found out this week is charges were dropped for “Felony Habitual DWI by the State of NC” for this individual who took my car without permission or my knowledge. I can’t find his name anywhere on the NC Court sights for upcoming court dates anywhere for anything. So, my question, I am innocent, I owned the car solely, where is my car, am I due restitution by the School Board or Dare County. If a lawyer I hired can’t help me, who can? It seems to me that someone has broken the law here and my rights have been violated.


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