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.
Tag Archives: failure to appear
State v. Diaz-Tomas Recognizes Broad Prosecutorial Discretion Following Dismissals With Leave
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?
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.
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. Continue reading →
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. Continue reading →
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 reasonable doubt, and persons found responsible for infractions in district court were afforded the right to a de novo jury trial in superior court), their non-criminal nature distinguished them from criminal offenses in a few critical ways. A law enforcement officer could not arrest a person for an infraction. A court could not issue an order for arrest if a person served with a citation for an infraction failed to appear in court. Infractions were punishable by a fine and costs only; no active or probationary sentence could be imposed.
Because persons charged with infractions could not be arrested, and persons found responsible for infractions could not be placed on probation or ordered to jail, the legislature recognized the need for other measures commensurate with the petty nature of such offenses to ensure that persons charged with infractions appeared in court and that those found responsible complied with court-ordered sanctions. See Report of the Courts Commission to the North Carolina General Assembly 15, 16 (1985). Appearances for infractions and compliance with court-ordered sanctions were thus tied to a person’s ability to remain licensed to drive. Failure to appear in court or comply with sanctions triggered an administrative license revocation. As the Courts Commission pointed out, the new “revocation procedure basically treats residents the same for in-state violations as they are treated when they are ticketed outside the state.” Id.; see also G.S. 20-4.20(b) (requiring DMV to suspend a person’s North Carolina driver’s license when the licensing authority of a reciprocating state reports that the person has failed to comply with a citation issued in that state). Today, the administrative license revocation provisions enacted in 1985 are codified, as amended, at G.S. 20-24.1 and G.S. 20-24.2. Here is what they currently provide:
If a person charged with a motor vehicle offense (be it a felony, misdemeanor or infraction) fails to appear on his or her court date and does not appear or “pay off” a citation for a waivable offense within 20 days thereafter, the clerk of court must report this failure to appear to DMV. G.S. 20-24.2. (The failure to appear also triggers imposition of a $200 court cost pursuant to G.S. 7A-304(a)(6).) The clerk must likewise report the failure of a person “charged with a motor vehicle offense” to pay a fine, penalty or costs within 20 days of the date specified in the court’s judgment. G.S. 20-24.2. Though this provision does not so specify, presumably it applies only when the conviction or adjudication of responsibility—in addition to the charge—is for a Chapter 20 motor vehicle offense. (A related provision of G.S. 7A-304(a)(6)—not limited to motor vehicle offenses—imposes court costs of $50 upon a defendant who fails to pay a fine, penalty, or costs within 20 days of the date specified in the court’s judgment.)
When it receives notice from the clerk pursuant to G.S. 20-24.2, DMV must mail or personally deliver to the person an order revoking his or her driver’s license, effective on the sixtieth day after the order is mailed or delivered. G.S. 20-24.1(b). If the person resolves the matter before the effective date of the revocation, the revocation never becomes effective and any entries on the person’s driving record related to the revocation are deleted. To resolve the matter, the person must do one of four things, depending upon the circumstances giving rise to the court’s report to DMV: (1) dispose of the charge in the trial division in which he or she failed to appear when the case was last called for trial or hearing; (2) demonstrate to the court that he or she is not the person charged with the offense; (3) pay the penalty, fine, or costs ordered by the court; or (4) demonstrate that his or her failure to pay the penalty, fine, or costs was not willful and that he or she is making a good faith effort to pay or that the penalty, fine or costs should be remitted.
Once the person has resolved the matter in court, the court so notifies DMV. G.S. 20-24.2. The clerk must provide the person upon request with a copy of the notice sent to DMV. If the person resolves the matter before the effective date of the revocation, the notice must indicate that the person is eligible to drive if he or she is otherwise validly licensed. If the revocation order becomes effective before the charge is resolved, the person’s license remains revoked until he or she resolves the matter by completing the necessary act of the four listed above and pays a $50 license restoration fee. G.S. 20-24.2.
If a clerk sends an order to DMV “through clerical mistake or other inadvertence,” the clerk’s office that sent the report of noncompliance must withdraw the report and send notice to DMV, which corrects its records. G.S. 20-24.2(b). When this occurs, the person is able to have his or her driver’s license reinstated without paying the restoration fee. In contrast, if the failure to appear is stricken but no notice is sent to DMV withdrawing the G.S. 20-24.2 report, the person must pay the $50 restoration fee to regain his or her driver’s license. A related provision in G.S. 7A-304(a)(6) requires the court to waive the $200 fee for failing to appear if the person demonstrates that he or she failed to appear because of an error or omission of a judicial official, a prosecutor or a law enforcement officer. (Courts also have discretionary authority to waive such costs upon upon a written finding of just cause. See G.S. 7A-304(a).)
I’d be curious to hear from readers who litigate motor vehicle charges as to whether both types of relief (withdrawal of the report and waiver of the $200 fee) typically are granted simultaneously or whether courts frequently determine that relief under one provision, but not the other, is warranted.
[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 Task Force on Driving While Impaired and were enacted by S.L. 2006-253 effective for offenses committed on or after December 1, 2006.
The first of these offenses, codified in G.S. 20-28(a2)(1), prohibits driving on a highway by a person whose license is revoked for an impaired driver’s license revocation after DMV has sent notice of the revocation pursuant to G.S. 20-48. G.S. 20-48 permits DMV to provide notice by mailing a notice to a person at his or her address as shown by DMV records. Notice by mail is deemed completed after four days from the mailing.
The second offense, codified in G.S. 20-28(a2)(2), is failure to appear for two years from the date of the charge after being charged with an implied consent offense.
Over the past few months, I’ve fielded numerous inquiries regarding the criminal offense of failing to appear for two years after being charged with an implied consent offense. First, may a defendant charged with an implied consent for which he or she already had failed to appear for two years as of the statute’s effective date be charged with the commission of this offense? Jeff wrote about that issue here, recognizing that charging a person based on an implied consent offense charged before December 1, 2004 for which the person failed to appear for two years before the statute’s effective date—December 1, 2006—“arguably . . . is precluded by the Ex Post Facto clause” since the offense was complete before the statute became effective on December 1, 2006.
Jeff also discussed at length the application of the two-year statute of limitations to such charges, depending on whether the offense is viewed as completed upon the expiration of two years or, instead, continuing until the defendant reappears.
May persons charged with implied consent offenses on or after December 1, 2004 but before December 1, 2006 who fail to appear be convicted of violating G.S. 20-28(a2)(2) since some portion of the two years expired after December 1, 2006? If so, a defendant charged with an implied consent offense on December 1, 2004 for which he or she failed to appear would arguably have committed and completed a violation of G.S. 20-28(a2)(2) the day after its enactment, even though, if the case was dismissed by the State with leave, it would not have appeared on the calendar on or after December 1, 2006.
Did the legislature intend this result? The effective date clause of S.L. 2006-253 isn’t particularly revealing as it simply provides that G.S. 20-28(a2) “becomes effective December 1, 2006, and applies to offenses committed on or after that date.” Generally statutes are presumed to act prospectively only unless retroactive application is clearly expressed or arises by necessary implication from the terms of the legislation. State v. Green, 350 N.C. 400, 405 (1999). It is unclear, however, whether our appellate courts would view application of G.S. 20-28(a2) to failures to appear completed within two years of December 1, 2006 as retroactive application since the two-year time period was not complete at the time of enactment. Cf. State v. Cowan, ___ N.C. App. ___, 700 S.E.2d 239, 244 n. 3 (2010) (internal quotations omitted) (noting that principle of prospective application governs statutory provisions that “alter the legal consequences of conduct or transactions completed prior to its enactment”).
It strikes me as reasonable to read G.S. 20-28(a2)(2) as requiring that the entire two year period, along with the other elements of the offense—the charge and the failure to appear—occur after G.S. 20-28(a2)(2) became effective. The Arizona Supreme Court recently interpreted in like manner a statute providing for waiver of appeal from a “final judgment of conviction . . . if the defendant’s absence prevents sentencing from occurring within ninety days after conviction,” reasoning the conviction and the ninety day period had to occur after the statute became effective. State v. Soto, 241 P.3d 896 (Ariz. 2010) (en banc). On the other hand, G.S. 20-28(a2)(2) could fairly be interpreted to require only some continuing failure to appear on or after December 1, 2006. Perhaps North Carolina’s appellate courts will definitively answer this question.
I’ve also been asked whether a person charged with an implied consent offense violates G.S. 20-28(a2)(2) if he or she appears for court on one or more occasions, but thereafter fails to appear for a period of two years. I don’t think the plain language of the statute supports prosecution in such cases. G.S. 20-28(a2)(2) prohibits “fail[ing] to appear for two years from the date of the charge after being charged with an implied-consent offense.” (emphasis added). Thus, the two years is measured from the date of the charge, not the date the person failed to appear. When the person appears within the two-year time frame, he or she hasn’t failed to appear for two years from the date of the charge. To construe the statute as criminalizing failure to appear for any two-year period that occurs post-charge renders “from the date of the charge” surplusage, an interpretation that disfavored by the rules of statutory construction.
Are there other issues related to the interpretation of G.S. 20-28(a2) that I’ve failed to identify? If you’ve litigated these or other issues, please share your thoughts.
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 guilty, hoping that the state will be forced to dismiss. The state isn’t able to proceed on the DWI but doesn’t want the defendant to benefit from his failure to appear.
The most common issues that arise in this situation include whether the state is required to reinstate the case, whether the state may attempt to negotiate a plea without disclosing the officer’s unavailability, and whether the state may charge the defendant with failure to appear. I answer those questions in this paper. Although this situation seems to arise most often with DWIs, and there are some DWI-specific aspects to the paper, much of it is relevant to any case in which a defendant disappears, and then reappears.
I should add that the paper is much better as a result of input from several of my colleagues. And of course, I welcome feedback, via email or blog comments, from readers who have an opinion about the issues addressed in the paper.