The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances.
failure to appear
Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense
Nearly 15 years ago, the General Assembly created the misdemeanor offense of failing to appear for two years for an implied consent offense. See S.L. 2006-253 (enacting new G.S. 20-28(a3), effective for offenses committed on or after December 1, 2006). The new provision was proposed by the Governor’s Task Force on Driving While Impaired in order to impose special sanctions for a person who fails to appear in court for this particular kind of motor vehicle offense. Those sanctions include driver’s license revocation for a person convicted of a violation of G.S. 20-28(a3)(2).
In the early years after the statute was enacted, there were many questions about which offenses it applied to. Offenses charged before December 1, 2004 for which the person had already failed to appear for two years before the statute’s effective date? Arguably not, for ex post facto reasons, as Jeff opined here. What about offenses charged a bit later for which the defendant already had failed to appear before December 1, 2006? Perhaps not, given the presumption of prospective application, as I wrote here. More recently questions have arisen about how to calculate the two-year statute of limitations for such an offense. Suppose, for example, a defendant was charged with DWI on January 1, 2017. The defendant failed to appear in court. On June 2, 2021, the State charged the defendant with failure to appear for two years after being charged with an implied consent offense. Does the two-year statute of limitations in G.S. 15-1 bar the prosecution?
Time is Up: Failures To Comply Are Once Again Reported
Among the Chief Justice’s early emergency directives and orders to address court operations in light of the COVID-19 outbreak were extensions for the time for paying monies owed in criminal cases. Those directives, which extended the time for doing certain acts in criminal cases and directed clerks to delay the entry of reports of failures to comply, were extended and modified in subsequent orders. The upshot was that defendants ordered to pay sums that would have resulted in entry of a “failure to comply” and the assessment of additional costs (and, in Chapter 20 cases, a report to DMV that would trigger a license revocation) had until July 31, 2020 to pay monies owed without incurring those consequences. That date passed last Friday, so clerks now are entering failures to comply, assessing the $50 in costs and reporting the entry to DMV in Chapter 20 cases. 
Improving North Carolina’s Criminal Court Date Notification System
Failures to appear in court (FTAs) are expensive and inconvenient. There is wasted preparation and court time, along with cost and inconvenience for witnesses, jurors, defense lawyers, prosecutors and victims. The defendant may be subject to arrest and possibly pretrial incarceration. Additionally, when an order for arrest issues after a FTA, law enforcement officers are tasked with taking the defendant into custody. And the arrest requires additional court time, both for the required initial appearance before a magistrate and any subsequent bond review proceedings.
A Simple Idea for Reducing FTAs on Summonses: Redesign the Form
In a series of posts I’ve been discussing bail reform in North Carolina and various options to reduce pretrial detentions that do more harm than good. Some of the solutions are tough and complicated. Here I offer one potential solution that’s neither hard nor complex: Redesign the Criminal Summons form.
The Link Between License Revocations and Failures to Appear
In 1985, the General Assembly reclassified certain minor traffic violations as a new type of non-criminal violation, termed an infraction. S.L. 1985-764. Though the legislation provided that infractions were to be processed in much the same manner as misdemeanor criminal charges (they were to be calendared and prosecuted by the district attorney, proved beyond a … Read more
Driving After Notification or Failure to Appear
[Editor’s note: Sorry that there was no post yesterday. I was travelling and didn’t have reliable internet access. We’re back on track today.] The misdemeanor offenses of driving after notification of an impaired driver’s license revocation or driving after failing to appear for two years for an implied consent offense were proposed by the Governor’s … Read more
Dealing with Disappearing DWI Defendants
I’ve had several questions recently about how to handle cases in which the defendant was charged with DWI, failed to appear, remained absent for several years, then reappeared. Often, the arresting officer has retired, moved, or can’t remember the case well enough to testify. The defendant wants the case reinstated and wants to plead not … Read more