Court of Appeals Holds that CDL Disqualification Bars DWI Prosecution

Tag Archives: civil revocation

Court of Appeals Holds that CDL Disqualification Bars DWI Prosecution

Posted on January 16, 2013 by Shea Denning

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.

Category: Motor Vehicles | Tags: CDLs, civil revocation, commercial motor vehicles, double jeopardy, DWI

2012 Amendments to Teenage License Revocation Law

Posted on July 26, 2012 by Shea Denning

[Editor’s Note: We are continuing to experience difficulty with our email subscription function. In attempting to remedy the problem, our hard-working technical folks accidentally sent two test email notifications to many subscribers yesterday afternoon. We apologize for the error and hope to have the system working smoothly soon.]

I wrote here about a 2011 law that requires law enforcement officers to arrest teenage drivers who are charged with, among other offenses, driving more than 15 miles per hour over the speed limit. The law required that these drivers be arrested so that they could be brought before a magistrate who could immediately revoke the teen’s license. The procedure was sort of the shock and awe of graduated licensing. Not surprisingly (and notwithstanding all 100 views of this YouTube video featuring yours truly blathering on about the subject) the law caught some teenagers and their parents unawares.

The General Assembly in its 2012 session responded to concerns that the law unwisely required that young drivers be arrested for commission of relatively minor offenses by amending the provisions of G.S. 20-13.3, effective for offenses committed October 1, 2012 or later, to permit a teenage driver’s license to be revoked without the driver having been arrested and hauled before the magistrate for an initial appearance. G.S. 20-13.3, as amended by S.L. 2012-168, continues to apply to 16- and 17-year old provisional licensees who are charged with a criminal moving violation and are not subject to license revocation under G.S. 20-16.5 based upon commission of an implied-consent offense. For offenses committed October 1, 2012 or later, a law enforcement officer may issue a citation charging a provisional licensee with a misdemeanor criminal moving violation without also arresting the person. When this happens, the officer must expeditiously file a revocation report with the clerk of superior court. Upon determining that the conditions requiring revocation under G.S. 20-13.3 are satisfied, the clerk must issue a revocation order and mail it to the provisional licensee. The ensuing 30-day revocation becomes effective on the fourth day after the order is mailed.

S.L. 2012-168 also creates a procedure for challenging the lawfulness of a revocation order entered pursuant to G.S. 20-13.3, where none previously existed. New G.S. 20-13.3(d2), effective for offenses committed on or after October 1, 2012, permits a provisional licensee to request in writing a hearing to contest the validity of the revocation. These review provisions are modeled on those provided in G.S. 20-16.5(g) for review of license revocations issued by the magistrate or clerk in connection with implied consent charges.

As amended, G.S. 20-13.3 continues to provide for a relatively immediate license revocation while restoring to law enforcement officers discretion over whether to arrest a driver for commission of a criminal moving violation. Equal awe with less shock, you might say.

If you’d like the nitty-gritty details, this paper reviews in detail the provisions of G.S. 20-13.3, as amended by S.L. 2012-168.

Category: Motor Vehicles, Procedure, Uncategorized | Tags: 20-13.3, civil revocation

Men Behaving Very Badly

Posted on April 26, 2012 by Shea Denning

As part of its ongoing coverage of the John Edwards trial, The News and Observer reported today that Edwards’ lawyer cross-examined former Edwards aide Andrew Young by reading from pages of Young’s memoir “The Politician.” I’m guessing that Young’s recounting of his arrest for impaired driving in Chapter 8 of the book, fittingly titled “Men Behaving Very Badly,” wasn’t the focus of the inquiry. Nevertheless, I thought Young’s statement that “[t]he practical problems that befall anyone stupid enough to drive under the influence in North Carolina are more than enough to teach an important lesson,” and that, among those problems is that “you automatically lose your driver’s license,” which Young said “rendered [him] unable to work,” would provide a catchy introduction to a blog post about license revocations and limited privileges for impaired driving. (Andrew Young, The Politician 172 (2010)).

The “automatic” revocation to which Young refers likely was a combination of two revocations since Young reports that “[p]anicked, I refused to take a Breathalyzer test.” Id. First, a refusal to be tested would have triggered the immediate civil revocation of Young’s license at his initial appearance under G.S. 20-16.5. You can read more about those revocations, commonly referred to as CVRs, here and here. In addition to the immediate CVR, which typically endures for at least thirty days, the driver’s license of a person who willfully refuses testing is subject to a 12-month revocation imposed by DMV. See G.S. 20-16.2(d). You can read more about willful refusal revocations here. While a person whose driver’s license is revoked under G.S. 20-16.5 may, upon satisfying certain conditions receive a limited driving privilege after 10 days of revocation, see G.S. 20-16.5(p), a limited privilege may not be awarded to allow driving during the period of a 12-month willful refusal revocation until the person’s license has been revoked for at least six months and the person has finally disposed of the underlying charge, see G.S. 20-16.2(e1).

Young wrote that he had to hire an assistant to help him get around for work while his license was revoked. He doesn’t say in the book what ultimately came of the charges. But if Young was convicted of impaired driving, he was subjected to yet another revocation as G.S. 20-17(a)(2) requires DMV to revoke “forthwith” the license of any driver convicted for impaired driving under G.S. 20-138.1. For a first offense, other than one sentenced as an Aggravated Level One DWI, the period of revocation is one year. G.S. 20-19(c1). If the person has been previously convicted of an offense involving impaired driving and that offense occurred within three years of the current offense, the revocation is for four years. G.S. 20-19(d). If the person has previously been convicted of two or more offenses involving impaired driving and the most recent offense occurred within five years before the current offense or the current offense is an Aggravated Level One DWI, the revocation is permanent. G.S. 20-19(e).

A person convicted of a Level Three, Four of Five DWI whose license is revoked solely under G.S. 20-17(a)(2) or as the result of a conviction in another jurisdiction substantially similar to impaired driving under G.S. 20-138.1 may obtain a limited privilege by satisfying other conditions. See G.S. 20-179.3; see also AOC-CR-312. To qualify, the person must at the time of the offense have been validly licensed or have had a license that had been expired for less than one year, and not have within the previous seven years been convicted of an offense involving impaired driving. In addition, the person must, subsequent to the offense, not have been convicted of nor had any unresolved charge lodged against him for an offense involving impaired driving and must have obtained and filed with the court a substance abuse assessment of the type required by G.S. 20-17.6. Finally, the person must furnish proof of financial responsibility, see G.S. 20-179.3(l), and must, upon issuance of the privilege, pay a processing fee of $100, see G.S. 20-20.2.

A limited driving privilege issued pursuant to G.S. 20-179.3 may authorize driving for essential purposes related to the person’s employment, maintenance of the person’s household, the person’s education, the person’s court-ordered treatment or assessment, community service ordered as a condition of the person’s probation, and emergency medical care. If the person is not required to drive for essential work-related purposes other than during standard working hours, defined as 6:00 a.m. to 8:00 p.m. on Monday through Friday, the privilege must prohibit driving during nonstandard working hours unless the driving is for emergency medical care or is specifically authorized by the court for completion of community work assignments or substance abuse assessment, instruction, or treatment. G.S. 20-179.3(g). Any driving not related to the purposes authorized by the privilege is unlawful, even if it occurs within the times authorized by the privilege. G.S. 20-179.3(f). The holder of a limited driving privilege who violates any of its restrictions commits the offense of driving while license revoked under G.S. 20-28(a). G.S. 20-179.3(j).

Given these restrictions, it is obvious that while a limited driving privilege may mitigate the effects of a license revocation, it does not, to paraphrase Young, erase all of the practical problems that befall persons who are convicted of driving while impaired in North Carolina.

Category: Motor Vehicles, Procedure, Sentencing, Uncategorized | Tags: andrew young, civil revocation, driver's license, DWI, impaired driving, revocation

Civil License Revocations and Double Jeopardy

Posted on November 15, 2011 by Shea Denning

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.

Category: Motor Vehicles, Uncategorized | Tags: civil revocation, commerical driver's license, cvr, double jeopardy, DWI, impaired driving, implied consent

Update on New G.S. 20-13.3: Civil License Revocations for Provisional Licensees

Posted on October 18, 2011 by Shea Denning

Want to frighten your 16 or 17-year-old this Halloween? Tell her that if she is charged with speeding more than 15 mph over the speed limit, she’ll be arrested and she’ll lose her license. It may sound scary, but, after January 1, 2012, it is true. I’ve written before about the new civil license revocation for provisional licensees. Since the effective date for new G.S. 20-13.3 recently was amended and folks have raised numerous questions about the new law, I thought I’d follow up with a post addressing how and when the new civil license revocation applies.

If you have questions that aren’t addressed here, ask away. Many thanks to Matt Osborne, Associate Legal Counsel for the Administrative Office of the Courts, who prepared the list of covered offenses and whose insights as to other aspects of the law informed this post.

Which drivers may be subjected to the new civil license revocation?

Drivers who are 16 or 17 years old who have a limited learner’s permit or a provisional license issued by NC DMV pursuant to G.S. 20-11. These drivers are defined as “provisional licensee[s].” G.S. 20-13.3(a)(4).

Persons who are 15 years old who have a limited learner’s permit issued by NC DMV also are considered provisional licensees. Such persons are not, however, subject to civil license revocation under G.S. 20-13.3 because, pursuant to the Juvenile Code, Chapter 7B of the North Carolina General Statutes, persons under 16 may not be arrested. Furthermore, there is no initial appearance for a juvenile alleged to be delinquent.

Which offenses trigger this license revocation?

The revocation is triggered by commission of a criminal moving violation, defined as a violation of Part 9 or 10 of Article 3 of Chapter 20 that is punishable as a misdemeanor or felony offense. G.S. 20-13.3(a)(2). Offenses listed in G.S. 20-16(c) for which no points are assessed are not included. Equipment violations codified in Part 9 of Article 3 of Chapter 20 likewise are not included.

The following offenses are criminal moving violations:

G.S. 20-137.4: Operating a school bus while using a mobile phone
G.S. 20-137.4A: Operating a school bus while using a mobile phone to text or access electronic email
G.S. 20-138.1: Driving while impaired
G.S. 20-138.2: Driving while impaired in a commercial vehicle
G.S. 20-138.2A: Operating a commercial vehicle after consuming
G.S. 20-138.2B: Operating a school bus, school activity bus, or child care vehicle after consuming alcohol
G.S. 20-138.3: Operating a motor vehicle by person less than 21 after consuming alcohol or drugs
G.S. 20-138.5: Habitual impaired driving
G.S. 20-138.7(a): Operating a motor vehicle while there is an open container of alcohol in the passenger area and while the driver is consuming or has consumed alcohol
G.S. 20-140: Reckless driving
G.S. 20-141(j1): Speeding more than 15 mph over limit or more than 80 mph
G.S. 20-141(j3): Speeding in a commercial motor vehicle carrying a load that is subject to the permitting requirements of G.S. 20-119 and (i) driving 15 mph or more over the posted speed, or (ii) driving 15 mph or more over the permit speed
G.S. 20-141.3: Operating a motor vehicle willfully in a prearranged speed competition, or operating a motor vehicle willfully in speed competition, or allowing one’s vehicle to be operated in a prearranged speed competition, or wagering on a prearranged speed competition
G.S. 20-141.4: Felony death by vehicle, misdemeanor death by vehicle, felony serious injury by vehicle, aggravated felony serious injury by vehicle, aggravated felony death by vehicle, repeat felony death by vehicle
G.S. 20-141.5: Speeding to elude arrest
G.S. 20-141.6: Aggressive driving
G.S. 20-149(b): Improper operation by an overtaken driver causing a collision resulting in serious bodily injury, bodily injury, or property damage
G.S. 20-157(a), (h), (i): Failing to move over for law enforcement or emergency vehicle giving warning signal, or violating G.S. 20-157 and causing damage to property or injury, or violating G.S. 20-157 and causing serious injury or death
G.S. 20-166(a), (a1), (b), (c), (c1): Failing to stop and remain after a crash resulting in serious bodily injury or death, or failing to stop and remain after a crash resulting in injury, or failing to provide information or render assistance following a crash, or failing to stop and remain after a crash resulting in damage to property or non-apparent injury
G.S. 20-166.1: Failing to notify law enforcement or other owner following crash, or failing to provide proof of insurance to DMV upon request
G.S. 20-166.2: Failing, when a passenger in a vehicle involved in a crash, to remain at the scene, or provide information, or render assistance
G.S. 20-167.1: Transporting spent nuclear fuel without notifying NCSHP in advance

(Note: The offenses in bold type are implied consent offenses that trigger a separate civil license revocation pursuant to G.S. 20-16.5. A judicial official may not enter a G.S. 20-13.3 revocation if the provisional licensee is subject to a G.S. 20-16.5 civil revocation for the same underlying conduct. The offense of misdemeanor death by vehicle is classified as an implied consent offense for offenses committed on or after December 1, 2011. See S.L. 2011-119.)

When is a provisional licensee’s license subject to civil revocation?

A provisional licensee’s permit or license is subject to revocation under G.S. 13-3 if: (1) a law enforcement officer has reasonable grounds to believe that the provisional licensee has committed a criminal moving violation, (2) the provisional licensee is charged with that offense, and (3) the provisional licensee is not subject to a civil revocation pursuant to G.S. 20-16.5 for the same underlying conduct.

What is the procedure for ordering the civil revocation of a provisional licensee’s license?

If a provisional licensee’s permit or license is subject to revocation under G.S. 20-13.3, the law enforcement officer must execute a revocation report (new AOC-CVR-12) and take the provisional licensee before a judicial official for an initial appearance. The law enforcement officer must expeditiously file the revocation report with the judicial official conducting the initial appearance.

If a properly executed revocation report concerning a provisional licensee is filed before a judicial official when that person is present before that official, the judicial official must, after completing any other proceedings involving the provisional licensee, determine whether there is probable cause to believe the conditions requiring civil license revocation are met. If the judicial official finds probable cause that the conditions in G.S. 20-13.3(b) are met, he or she must enter an order (new AOC-CVR-13) revoking the provisional licensee’s permit or license.

How long does the provisional licensee civil revocation last?

The period of revocation is 30 days. G.S. 20-13.3(d). Since the civil license revocation is a civil action, see G.S. 20-13.3(g), the civil counting rules of G.S. 1A-1, Rule 6(a) apply. Pursuant to Rule 6(a), the revocation ends at 12:01 a.m. on the thirtieth day after the revocation order is entered unless that date falls on a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions, in which case the revocation remains in effect until the next day that the courthouse is open for transactions.

Is a written revocation order required?

Yes. The judicial official must give the provisional licensee a copy of the revocation order (new AOC-CVR-13). G.S. 20-13.3(d). The order must state the date on which the provisional licensee’s permit or license again becomes valid.

Is the provisional licensee required to surrender his or her license or permit?

No. The provisional licensee keeps his or her license or permit. G.S. 20-13.3(d). The provisional licensee is not, however, authorized to drive during the revocation period.

Must the court inform DMV of the revocation?

Yes. The clerk must notify DMV of the issuance of a provisional licensee civil revocation within two business days of the issuance of the revocation order. G.S. 20-13.3(e). The notice must specify the beginning and end date of the revocation period.

May a provisional licensee be awarded a limited driving privilege?

No. G.S. 20-13.3(f) provides that a person whose license is revoked pursuant to G.S. 20-13.3 is not eligible for a limited driving privilege.

Must the licensee pay a fee to end the civil revocation?

No. The person’s permit or license becomes valid by operation of law at the conclusion of the revocation period. Payment of a fee is not required.

Are driver’s license or insurance points assessed for such revocations?

No. G.S. 20-13.3(h) provides that no driver’s license or insurance surcharge may be assessed for a G.S. 20-13.3 revocation.

What is the effective date of G.S. 20-13.3?

S.L. 2011-385 (S 636) enacted new G.S. 20-13.3, effective for offenses committed on or after October 1, 2011. The effective date was amended by H 335, ratified by the General Assembly on September 14, 2011 and presented to the governor on September 15, 2011. The bill, chaptered as S.L. 2011-412, became law without the governor’s signature on October 15, 2011. S.L. 2011-412 made new G.S. 20-13.3 effective January 1, 2012 for offenses committed on or after that date.

To carry out the legislature’s intent as reflected in H 335 and to avoid the confusion that would be caused by implementing the provisional licensee civil revocation as of October 1, 2011 and, shortly thereafter suspending it until January 1, 2012, the Administrative Office of the Courts elected not to implement S.L. 2011-385 on October 1, 2011, instead delaying its implementation until January 1, 2012.

Category: Motor Vehicles, Procedure, Uncategorized | Tags: civil revocation, provisional licensee

S.L. 2011-385 Targets Unsafe Driving by Teenagers

Posted on August 3, 2011 by Shea Denning

Fifteen years ago, the General Assembly enacted S.L. 1997-16, implementing graduated driver’s licenses requirements for people under the age of 18, who are termed provisional licensees. Pursuant to G.S. 20-11, driving privileges are granted to minors on a limited basis and are expanded as a provisional licensee meets additional requirements. The process is designed to ensure that provisional licensees have both instruction and experience—elements the legislature deems essential for safe driving—before obtaining a driver’s license.

Amendments to G.S. 20-11 in the years since adoption of graduated licensing have further restricted driving by provisional licensees by limiting the number of passengers under 21 who may be in the vehicle and by prohibiting mobile phone use by such drivers. Nevertheless, the issue of unsafe driving by teenagers continues to plague North Carolina and its legislature.

S.L. 2011-385 enacts several provisions, effective October 1, 2011, designed to address this problem.

First, the act amends G.S. 20-11 to require that applicants for limited and full provisional licenses submit to DMV driving logs signed by a supervising driver. To obtain a limited provisional license, the applicant’s driving log must list 60 hours of driving, at least 10 hours of which occurred at night. No more than 10 hours of driving per week may be counted. An applicant seeking a full provisional license must submit a log detailing 12 hours of driving, at least 6 hours of which occurred at night. If DMV has cause to believe that a driving log has been falsified, the applicant must complete a new driving log and is not eligible to obtain the license for which he or she applied for six months.

The act’s second approach to curbing unsafe driving is to require the immediate revocation of a provisional license when the licensee is charged with a misdemeanor or felony motor vehicle offense that is defined as a criminal moving violation. A “criminal moving violation” is a violation of Part 9 or 10 of Article 3 of Chapter 20 that is punishable as a misdemeanor or felony offense. The term does not include offenses listed in G.S. 20-16(c) for which no driver’s license points are assessed, nor does it include equipment violations in Part 9 of Article 3 of Chapter 20. Thus, for example, the unlawful use of a blue light on a vehicle in violation of G.S. 20-130.1 is not a criminal moving violation because that offense is an equipment violation codified in Part 9 of Article 3 of Chapter 20. In contrast, speeding more than 15 miles per hour over the speed limit or more than 80 miles per hour in violation of G.S. 20-141(j1) is a criminal moving violation as this offense is a misdemeanor codified in Part 10 of Article 3 of Chapter 20 and is not listed as a conviction for which no points may be assessed in G.S. 20-16(c).

New G.S. 13-3 provides that if a law enforcement officer has reasonable grounds to believe that a person under the age of 18 who has a limited learner’s permit or a provisional license has committed a criminal moving violation, the person is charged with that violation, and the person’s license is not subject to civil revocation for a violation of the implied consent laws (you can read more about those types of civil license revocations here) the law enforcement officer must execute a revocation report and take the provisional licensee before a judicial official for an initial appearance. This requires law enforcement officers to arrest provisional licensees charged with misdemeanor motor vehicle offenses, such as speeding, for which drivers typically are cited and released.

The revocation report must be filed with the judicial official (typically, a magistrate) conducting the initial appearance on the underlying criminal moving violation. If a properly executed report is filed with a judicial official when the person is present, the judicial official must, after completing any other proceedings, determine whether there is probable cause to believe the conditions requiring civil license revocation pursuant to G.S. 20-13.3(b) are met. If the judicial official finds probable cause, he or she must enter an order revoking the provisional licensee’s permit or license for 30 days. The provisional licensee (unlike a person whose license is revoked for an implied consent offense pursuant to G.S. 20-16.5) is not required to surrender his or her permit or license card. The clerk must notify DMV of the issuance of a G.S. 20-13.3 revocation order within two business days. A person whose license is revoked under G.S. 20-13.3 is not eligible for a limited driving privilege.

S.L. 2011-385 directs DMV to study the issue of teen driving and the effectiveness of the act’s provisions. DMV specifically must determine whether, beginning October 1, 2011, there has been a decrease in any of the following types of incidents involving provisional licensees: property damage crashes, personal injury crashes, fatal crashes, moving violations, and seat belt violations. DMV must report its findings to the Joint Legislative Transportation Oversight Committee by February 1, 2014.

Category: Motor Vehicles, Uncategorized | Tags: civil revocation, driver's license, driving, provisional licensee, teenage drivers

Lee v. Gore: Round Two

Posted on August 19, 2010 by Shea Denning

I blogged here about the North Carolina Court of Appeals’ initial opinion in Lee v. Gore, ___ N.C. App. ___ (January 19, 2010), holding that DMV lacked authority to revoke the petitioner’s driving privileges for refusing a chemical analysis upon receipt of an affidavit that failed to allege a willful refusal. DMV filed a petition for rehearing, which the court granted. The court of appeals filed a superseding opinion in Lee v. Gore this week with the same holding. Judge Wynn dissented, however, securing for DMV an appeal of right to the state supreme court.

The facts are discussed in some detail in the earlier post, so I won’t recount them again here. Upon rehearing, DMV argued that it could suspend a person’s driving privilege for refusing to submit to a chemical analysis and that there was no requirement that the refusal be willful. As support for its contention, DMV pointed to the statutorily prescribed notice of implied consent rights which require a chemical analyst to inform a defendant charged with an implied consent offense that his or her driver’s license will be revoked if he or she refuses a test. DMV further argued that G.S. 20-16.2(d), which affords a defendant the right to a hearing before DMV to contest a refusal-based revocation, was “a statutory embodiment of due process protections for persons accused of willfully refusing chemical analysis,” and that the absence of a properly executed affidavit did not prevent DMV from revoking a person’s driving privileges.

The court rejected DMV’s argument, citing precedent establishing that a person’s refusal to submit to a chemical analysis must be willful in order to suspend the person’s driving privileges. The court further rejected the notion, implicit in the State’s argument, that a refusal implies willfulness and therefore provides a sufficient basis for revocation. The court reasoned that if the State’s argument prevailed, DMV could revoke for mere refusal, but would only be required to provide notice and a hearing for a revocation resulting from a willful refusal—a result that it said could not have been intended by the General Assembly.

This analysis begs the question: What’s the difference between a willful refusal and a refusal? A refusal is “ ‘the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.’ ” Joyner v. Garrett, 279 N.C. 226, 233 (1971) (quoting Black’s Law Dictionary (4^th ed. 1951)). A willful refusal occurs when a person (1) is aware that he or she has a choice to take or refuse test, (2) is aware of the time limit within which he or she must take the test, and (3) voluntarily elects not to take the test or knowingly permits the prescribed thirty minute time limit to expire before electing to take the test. Etheridge v. Peters, 301 N.C. 76, 81 (1980). In essence, a willful refusal is a refusal that occurs after the defendant is advised of his or her implied consent rights and is asked to submit to a chemical analysis. See, e.g., Rice v. Peters, 48 N.C. App. 697, 700-01 (1980) (holding that purpose of refusal-revocation statute is “fulfilled when the petitioner is given the option to submit or refuse to submit to a breathalyzer test and his action is made after having been advised of his rights in a manner provide by the statute”).

The Lee court held that the sending to DMV of the test record ticket, on which the word “REFUSED” was printed and circled, did not satisfy the requirement that the affidavit include an affirmative statement of the person’s willful refusal, even though the affidavit referenced the attached test record ticket.

While the new opinion omits troubling language from the earlier opinion stating that the test record ticket could not be considered part of the affidavit, the court nevertheless held that such a form “is not a substitute for a ‘properly executed affidavit’ as required by G.S. 20-16.2(c1).” As it did earlier, the court again held that the officer’s failure to check the box on the form affidavit indicating a willful refusal resulted in DMV’s receipt of an affidavit that did not meet the statutory requirements. For that reason, DMV had no authority to revoke the petitioner’s driving privileges and the subsequent hearing could not cure the shortcomings of the affidavit as the hearing never should have occurred.

Judge Wynn dissented on the basis that the petitioner suffered no prejudice. The dissent characterized the majority opinion as at odds with the holding in Ferguson v. Killens, 129 N.C. App. 131 (1998). In Ferguson, the court held that DMV’s failure to notify the petitioner that his license was revoked until 99 days after the alleged refusal, which arguably violated the statutory requirement that DMV “expeditiously” provide such notice, did not require that the revocation be rescinded. Ferguson rejected the petitioner’s argument that rescission was required on the basis that the petitioner failed to show that he was prejudiced by the late notice and that expeditious notice was not among the five requirements listed in G.S.20-16.2(d) for consideration at a refusal-revocation hearing.

While the Lee majority distinguished Ferguson on the basis that the requirement for expeditious notice did not affect DMV’s authority to revoke the license in the first instance, the dissent rejected that distinction, noting that because the request for a hearing suspends the revocation, the petitioner in Lee retained his license pending the hearing, just like the petitioner in Ferguson. Thus, the dissent reasoned, the petitioner in Lee bore the burden of establishing that he was prejudiced by the improperly executed affidavit—a burden that he failed to satisfy.

The dissenting opinion affords DMV an appeal of right to the state supreme court. And even if that court adopts the majority view that, without an affidavit averring a willful revocation, DMV cannot act, I wonder whether the affidavit in Lee could be construed to make such an averment. After all, a “willful refusal” is a refusal after notification of implied consent rights. And the chemical analyst averred on the affidavit (box 7) that he “informed the driver orally and also gave notice in writing of the rights specified in G.S. 20-16.2(a)” and that he “completed informing the driver of the rights as indicated on the attached [test record ticket].” That statement, along with the incorporated test record ticket, arguably establishes a willful refusal.

Nevertheless, unless and until the supreme court says otherwise, Lee v. Gore establishes that each required allegation of G.S. 20-16.2(c1) must be contained on the face of the form affidavit and revocation report before DMV can act to revoke a petitioner’s license.

Category: Motor Vehicles, Procedure, Uncategorized | Tags: civil revocation, DWI, impaired driving, refusal

Lee v. Gore and Checking the Box

Posted on January 25, 2010 by Shea Denning

In an implied consent case in which a defendant is asked to submit to a chemical analysis, the law enforcement officer and chemical analyst (who often are the same person) complete an affidavit averring that the implied consent testing procedures have been followed and stating the results of the test or that the person willfully refused to submit to a chemical analysis. This affidavit, which also serves as a revocation report used in determining whether the defendant’s license will be civilly revoked pursuant to G.S. 20-16.5, typically is sworn and subscribed before the magistrate at the initial appearance. AOC-CVR-1A is the current form affidavit and revocation report. The form is designed to allow the chemical analyst to incorporate by reference the test record ticket from the breath-testing instrument, which indicates a refusal or a particular alcohol concentration.

When a person refuses to submit to a chemical analysis, the law enforcement officer must immediately mail the affidavit to DMV. Upon receiving a “properly executed affidavit,” DMV must expeditiously notify the person charged that his or her license to drive is revoked for 12 months.

Among the opinions issued this week by the North Carolina Court of Appeals was Lee v. Gore, a case in which the court held that DMV lacked jurisdiction to revoke the petitioner’s driver’s license when the officer failed to check the box on the form affidavit indicating that petitioner refused the chemical analysis.

Richard Lee, a Florida resident and licensee was driving in Wilkes County on August 22, 2007, when he was stopped by a police officer. The officer arrested Lee for impaired driving and took him to an intake center for a chemical analysis of his breath. Lee did not submit to the analysis, and the officer (who also was a chemical analyst) marked “refused” on the test record ticket for the Intoxilyzer 5000, designated as form DHHS 3908. The officer executed an affidavit and revocation report before the magistrate on AOC-CVR-1 (which has since been replaced by AOC-CVR-1A). Section 14 of that form contained a box the chemical analyst could check to aver that “[t]he driver willfully refused to submit to a chemical analysis as indicated on the attached . . . DHHS 3908.” This box was left blank on the version of the form sworn to and filed with the magistrate. The officer mailed a copy of the sworn affidavit to DMV, as required by G.S. 20-16.1(c1).

When DMV received the affidavit, it notified Lee that his North Carolina driving privileges would be revoked for 12 months. Lee requested a hearing to contest the revocation. Oddly, the affidavit and revocation report produced by DMV at the hearing had an “x” marked in the box at section 14, a notation not included on the filed copy of the form. The officer testified at the hearing that the “preventive maintenance and the refuse box was left unchecked on my particular copy,” and the copy he gave Lee. He further stated that he didn’t “know whether the magistrate caught it and checked it, or if it was checked in Raleigh.” (As an aside, if the magistrate had made the change, it would have been reflected on the officer’s copy as well as the copy the officer mailed to DMV, both of which are returned to the law enforcement officer after execution.)

The officer said that he later altered “[his] copy only” by adding the preventative maintenance date and the refusal information. The officer affirmed that he “never went back and told the magistrate or gave anybody authority to change that affidavit.”

The hearing officer determined that Lee’s driving privileges were properly revoked, a decision affirmed by the superior court. Lee appealed to the court of appeals, which vacated the superior court’s order and remanded the case to DMV for reinstatement of Lee’s driving privileges. The appellate court wrote that the officer “testified that he did not check the box for section fourteen and the affidavit he sent to [DMV] did not have the box for section fourteen checked,” though DMV argued strenuously in its briefs that the officer, and not anyone at DMV, altered the affidavit after it was executed.

The court of appeals held that the “plain language” of G.S. 20-16.2(d) requires that DMV receive a “properly executed affidavit” that satisfies the requirements of G.S. 20-16.2(c1) before it “is vested with the authority to revoke a driver’s license.” The court rejected DMV’s argument that the mailing to DMV of the test record ticket marked “refused” along with the affidavit satisfied the requirement that the sworn affidavit include an affirmative statement of the driver’s willful refusal, holding that the test record ticket was not a substitute for the properly executed affidavit mandated by statute. Furthermore, the court found “no evidence” presented at the DMV hearing that the officer showed the magistrate the test record ticket or even that he brought it with him when he executed the affidavit.

The court wrote that even if the test record ticket could be considered part of the affidavit “which construing the plain language of [G.S.] 20-16.2 we hold it cannot,” there was no evidence the magistrate knew of the form or knew it was marked as a refusal when the affidavit was executed. The court went on to state that there was no evidence that the officer swore before the magistrate in any manner that Lee had willfully refused the chemical analysis.

I read the record differently. The box in section 7 of the form was checked on everyone’s copy, verifying that the officer informed Lee of his implied consent rights “as indicated on the attached . . . DHHS 3908.” Moreover, Lee’s driving record, included in the record on appeal, reflects that the magistrate must have received evidence that Lee refused the chemical analysis. The magistrate imposed a 30-day civil license revocation, which required a finding that Lee had an alcohol concentration above the legal limit or that he willfully refused a chemical analysis.

For Lee, the court’s analysis resulted in reinstatement of his North Carolina driving privileges. But what are the implications more generally? First, to establish authority for revocation, the affidavit must be filled out correctly. The court’s sweeping statement about a test record ticket not comprising part of the affidavit might cause one to question whether the test record ticket itself must be separately sworn and subscribed even if the section incorporating the form by reference is checked, though I doubt the court would apply that principle to reject an affidavit in a case in which the appropriate incorporating box is checked. Second, errors in an affidavit can’t be cured by simply altering the previously sworn version—a proposition that is hardly surprising.

Category: Procedure, Uncategorized | Tags: civil revocation, DWI, refusal

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