I’m not buying a lottery ticket this week. The court of appeals’ opinion in State v. McKenzie, published yesterday, casts serious doubt on my wagering skills. And if my wagers are this suspect when I make an educated guess, I don’t want take on the odds in a game of chance.
McKenzie holds, over a dissent, that the one-year disqualification of a defendant’s commercial driver’s license (CDL) based on the issuance of a civil license revocation for impaired driving is so punitive that it amounts to criminal punishment. Therefore, the majority concludes that prosecution for impaired driving after such a CDL disqualification violates double jeopardy. What does this have to do with my ability to predict outcomes? I forecast a different analysis in this earlier post.
McKenzie, a commercial truck driver for a logging company, was arrested in 2010 for impaired driving in a non-commercial vehicle. At McKenzie’s initial appearance, the magistrate issued a 30-day civil license revocation (CVR) based upon the results of McKenzie’s breath test, which reported an alcohol concentration of 0.08 or higher. See G.S. 20-16.5. Because McKenzie had a CDL, the issuance of the CVR disqualified him from driving a commercial motor vehicle for one year. See G.S. 20-17.4(a)(7). McKenzie lost his job as a truck driver after his disqualification. He worked for a while for his same employer as a logger, at half the pay. McKenzie was fired a few months after he moved into this new role because the company’s logging crews were overstaffed. McKenzie subsequently moved to dismiss his DWI charges, alleging due process, double jeopardy and equal protection violations. The district court dismissed the charges, but the superior court reversed and reinstated the charges. The defendant appealed to the court of appeals, arguing that the superior court erred because his DWI prosecution constituted double jeopardy.
After employing the seven-factor analysis in Hudson v. United States, 522 U.S. 93 (1997) for determining whether a sanction that the legislature has characterized as civil nevertheless amounts to criminal punishment, the court concluded that G.S. 20-17.4(a)(7) revocation amounted to criminal punishment. What’s surprising about McKenzie is that our appellate courts have used the Hudson analysis before to evaluate whether civil license revocations themselves are criminal punishment. And, on every such occasion, the court has determined they are not. See State v. Oliver, 343 N.C. 202 (1996) (rejecting defendant’s challenge on double jeopardy grounds to his prosecution for impaired driving following 10-day CVR and concluding that revocation was remedial, not punitive); State v. Evans, 145 N.C. App. 324 (2001) (rejecting defendant’s double jeopardy challenge to his prosecution for DWI following 30-day CVR, and finding that purpose of 30-day civil license revocation was “remov[ing] from our highways drivers who either cannot or will not operate a motor vehicle safety and soberly”). Indeed, in State v. Reid, 148 N.C. App. 548 (2002), the court rejected a defendant’s double jeopardy challenge to his prosecution for DWI after a 30-day CVR triggered a 30-day CDL disqualification. Noting its ruling in Evans that the 30-day CVR was a civil sanction, not a criminal punishment, the court declined to distinguish the defendant’s circumstances based on the CDL consequences, reasoning that the “impact on a single defendant is irrelevant to the double jeopardy analysis.” Id. at 563-64. Reid further noted the state’s “greater interest in the public’s safety regarding commercial drivers because there exists a greater risk of harm.” Id. at 553.
The court in McKenzie determined that the length of the CDL disqualification distinguished it from short-term CVRs whose retributive and deterrent effect is incidental to the overriding purpose of protecting public safety. The court characterized the “main purpose” of the one-year CDL to be deterrence and any remedial purpose “as incidental to its deterrent and retributive goals.” Reciting cautionary words from the Evans court following the lengthening of the CVR period from 10 to 30 days that “at some point, a further increase in the revocation period . . . becomes excessive . . . and can no longer serve a legitimate remedial purpose,” McKenzie concluded that the one-year CDL disqualification in G.S. 20-17.4 crossed that threshold.
I haven’t fully considered all of McKenzie’s implications, but, at a minimum, it establishes an exception to the long-standing rule that “[p]roceedings involving the suspension or revocation of a license to operate a motor vehicle are civil and not criminal in nature, and the revocation of a license is no part of the punishment for the crime for which the licensee was arrested.” Joyner v. Garrett, 279 N.C. 226, 234 (1971). How that exception applies to revocations other than G.S. 20-17.4(b)(7) will doubtless be litigated in cases to come. As I noted earlier, there was a dissenting opinion. Judge Robert C. Hunter concluded that the CDL revocation did not constitute criminal punishment and thus defendant’s DWI prosecution did not subject him to double jeopardy. Stay tuned to see if the State appeals, affording the North Carolina Supreme Court an opportunity to analyze the issue.