Tag Archives: driver’s license
The 2015 North Carolina General Assembly convened earlier today, with new members sliding into place just as the first ice storm of the winter left the area. And while most folks’ attention will (as usual) be focused on the state budget, I’ll be watching over the next few months for legislation related to motor vehicle crimes. I’m particularly curious to see whether the General Assembly shows any interest in interrupting the cycle of driver’s license revocation, an issue that lately has attracted national attention. Continue reading →
Suppose a police officer patrolling a city street lawfully pulls over a car with out-of-state tags. When the officer asks the driver for his driver’s license, the driver tells the officer: I had a Maryland driver’s license, but it was revoked. May the law enforcement officer properly charge the defendant with driving while license revoked in violation of G.S. 20-28(a)? After all, the defendant (1) drove (2) a motor vehicle (3) on a highway (4) with a revoked license (5) knowing it was revoked. G.S. 20-28(a).
G.S. 20-28(a) historically has been interpreted not to support charges of driving while license revoked on these facts. See Ben F. Loeb & James C. Drennan, Motor Vehicle Law and the Law of Impaired Driving in North Carolina 84 (UNC Institute of Government, 2000) (“The offense of driving while license revoked has generally been interpreted to require that one’s license be revoked by the State or North Carolina and that notice of that fact be provided by the state.”); see also N.C. Pattern Jury Instruction-Crim. 271.10 (stating that for jury to find that notice of the revocation was given, of which the defendant had knowledge, the State must prove beyond a reasonable doubt that (1) notice was personally delivered, (2) the defendant surrendered his or her license to an official of the court, or (3) that DMV provided notice by mail in accordance with G.S. 20-48).
Why out-of state revocations don’t count. The terms “revocation: and “suspension” are defined in G.S. 20-4.01(36) and G.S. 20-4.01(47) to mean “termination of a licensee’s or permittee’s privilege to drive . . . for a period of time state in an order of revocation or suspension.” The requirement that the termination be stated in an order of revocation or suspension corresponds to the requirement that the State prove that a defendant had actual or constructive knowledge of the revocation to obtain a conviction under G.S. 20-28(a). Traditional wisdom holds that the “order” referred to in G.S. 20-4.01(36), (37) refers to an order by a North Carolina court or the North Carolina Division of Motor Vehicles (NC DMV). Separate statutory provisions authorize NC DMV to suspend or revoke the driving privileges of nonresidents in the same manner as it may for residents and prohibit a person from operating under a foreign license while subject to such a revocation order. G.S. 20-21; 20-22; see also G.S. 20-16.5(a)(5), (e), (f) (requiring surrender of a driver’s license from any jurisdiction pursuant to civil license revocation in an implied consent case). There is no question that a nonresident is revoked for purposes of G.S. 20-28(a) when NC DMV or a North Carolina court (in the case of G.S. 20-16.5) revokes the person’s privilege to drive pursuant to these provisions.
A contrary view. One could make a plausible argument that an out-of state revocation is a revocation for purposes of G.S. 20-28(a). A nonresident who is at least 16 years old who has in his or her immediate possession a valid driver’s license issued in his or her home state or country may lawfully drive in North Carolina if he or she operates the motor vehicle in accordance with the license restrictions and vehicle classifications that would apply in his or her home state or country. G.S. 20-8(3). The revocation of the nonresident’s valid license in his or her home state “terminat[es]” the nonresident’s “privilege to drive” in North Carolina, thereby arguably satisfying the definition of “revocation” in G.S. 20-4.01(36). And while it sometimes may be difficult for the State to prove that a defendant was notified of a revocation issued by another jurisdiction, there are instances, like the one recounted above, in which the State easily can prove that the defendant knew of the revocation.
There are no appellate court cases considering these arguments, which may indicate the universality of the view that only North Carolina revocations count. More than 163,000 charges of driving while license revoked in violation of G.S. 20-28(a) were filed in 2012, rendering it the third most commonly charged criminal offense, after speeding and displaying an expired registration plate. If the traditional view is holding fast, these numbers indicate that North Carolina issued revocations alone are more than enough to fill court dockets.
Those in the know, let us know. Are you aware of charges under G.S. 20-28(a) based on out-of-state revocation without any corresponding action by North Carolina?
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.
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.
The State House of Representatives recently passed H 33, “An Act to Provide that Certain Consulate or Embassy Documents May Not be Used to Determine a Person’s Identification or Residence for Governmental and Law Enforcement Purposes.” Among the provisions the bill would amend if enacted is G.S. 20-7(b4), which currently permits the North Carolina Division of Motor Vehicles (NCDMV) to rely on consular documents as proof of North Carolina residency. Other types of documents that may be used to establish residency for driver’s license purposes include pay stubs, utility bills, bank statements, and rental contracts.
While H 33, which was supported by the Americans for Legal Immigration PAC, has stirred debate (see news reports here, here and here) on the issue of unauthorized immigration, it does not purport to regulate immigration—the exclusive province of the federal government. Moreover, the law does not affect the ability of unauthorized immigrants to obtain a North Carolina driver’s license. Unauthorized immigrants already are ineligible to obtain a North Carolina driver’s license, learner’s permit, or identification card. This has been the case since enactment of the 2006 Technical Corrections Act, which eliminated a provision that allowed NCDMV to issue driver’s licenses to people providing an Individual Taxpayer Identification Number in lieu of a Social Security number. The requirement that a license applicant provide a valid social security number removed people without such numbers, and consequently all unauthorized immigrants, from the people eligible to obtain a North Carolina driver’s license. The only statutory exception to this requirement applies to an applicant who presents valid documentation issued by, or under the authority of, the U.S. government that proves his or her legal presence of limited duration in the United States. NCDMV must issue to an applicant who presents such valid documentation and meets other licensing requirements a license of limited duration, which may not expire later than the expiration of the authorization of the applicant’s legal presence in the United States. See G.S. 20-7(f)(3).
Thus, G.S. 20-7 groups driver’s license applicants into two categories: those who have Social Security numbers and those who have legal presence of limited duration. There is, however, a third group of applicants who may not be included in either statutory category. Some immigrants, such as lawful permanent residents and refugees, are authorized to remain in the United States permanently, but may not have Social Security cards. Although NCDMV includes documents establishing permanent legal status among the documents that it accepts as establishing a legal presence of limited duration, immigrants with permanent legal status are issued driver’s licenses of regular duration (that is, five or eight years, depending on the applicant’s age) regardless of whether such persons also have a Social Security Card.
If you’d like to know more about North Carolina’s Driver’s License requirements and their history and relation to the REAL ID act of 2005, you can read more here.