Legislation enacted by the General Assembly this session again makes it possible for persons convicted of habitual impaired driving to (eventually) have their driving privileges restored.
Tag Archives: revocation
When a person’s probation is revoked, his or her suspended sentence is generally activated in the same manner in which it was entered by the sentencing judge. But a lot can happen—both good and bad—in the time between sentencing and revocation, and sometimes a change is in order. This post considers the extent of a judge’s authority to modify a suspended sentence upon revocation of probation.
Sentence reduction. Under G.S. 15A-1344(d), a judge may, before activating a sentence, reduce it. The reduction must be consistent with subsection G.S. 15A-1344(d1), which limits the court’s authority as follows. For a felon, the modified sentence must be within the same range (presumptive, mitigated, or aggravated) of the same grid cell used in determining the original sentence. Thus, a Class H/Level II probationer with a presumptive-range 8–19 month suspended sentence could have that sentence reduced to no less than 6–17 months upon revocation of probation. And if the same defendant had received a 6–17 month presumptive-range sentence in the first place, there would be no room for reduction at all, because that is the bottom of the presumptive range in that cell. For a misdemeanant, the court is likewise limited to the range of durations applicable to the defendant at sentencing. But that is not much of a limitation, because every cell on the misdemeanor grid allows for a sentence as short as 1 day.
It is not clear whether the court may reduce an impaired driving sentence at the point of revocation. G.S. 15A-1344(d) says any reduction must be consistent with subsection (d1), but that subsection uses language exclusive to Structured Sentencing (Article 81B, prior conviction level, etc.), raising some doubt about whether any reduction is allowed at all for a DWI. On the other hand, before 1994, G.S. 15A-1344(d) indicated that any sentence could be reduced upon revocation, suggesting that the Structured Sentencing references were added as conforming changes, and probably not intended to prohibit reductions for DWIs.
Is a sentence reduction permissible when the court imposes a period of confinement in response to violation (CRV)? Arguably not, as G.S. 15A-1344(d) empowers the court to reduce a sentence only “before activating a sentence.” Albeit in a pre–Justice Reinvestment case, the court of appeals interpreted that subsection to mean the court is empowered to reduce a sentence “only when the prison sentence is activated and the probation is revoked.” State v. Mills, 86 N.C. App. 479 (1987). To the extent that CRV is viewed as an alternative to activation, it would seem that no reduction is allowed at that point. The issue has yet to come before the appellate courts.
Consecutive and concurrent sentences. If a probationer is subject to multiple suspended sentences, the judge revoking probation decides whether activated sentences will run concurrently or consecutively. As described in this prior post, that is so regardless of whether the judgments suspending sentence specified that the sentences would run a particular way in the event of revocation. See State v. Hanner, 188 N.C. App. 137 (2008); State v. Paige, 90 N.C. App. 142 (1988). By default, activated sentences run concurrently upon revocation, G.S. 15A-1344(d), and my understanding is that the prison system will run them that way if the revocation order is silent on the issue, even if the original judgments suspending sentence called for consecutive sentences upon revocation. The bottom line is that the revoking judge has a choice, and it would be error for that judge to assume the revoked sentences were required to be activated as entered by the original sentencing judge. State v. Partridge, 110 N.C. App. 786, 788 (“It is apparent from a reading of the transcript . . . that [the trial judge] felt that he did not have the authority to [order concurrent sentences]. Therefore, defendant is entitled to a new revocation of probation hearing.”).
Consolidation. An activated sentence may not be consolidated for judgment with another conviction obtained at a different time—including the new conviction that may have prompted revocation. Structured Sentencing provides that consolidation is allowed only for offenders “convicted of more than one offense at the same time,” G.S. 15A-1340.15(b) (felonies), or “same session of court,” G.S. 15A-1340.22(b) (misdemeanors).
Other issues. In addition to the sentence-length modifications described above, some other matters may arise for the first time upon revocation of probation. For example, a recommendation for work release during the activated sentence should not be made until probation is revoked. G.S. 148-33.1(i). The court may also make a recommendation about whether any restitution ordered should be made a condition of the defendant’s eventual post-release supervision, G.S. 148-57.1, and, if so, whether it ought to be paid out of the defendant’s work release earnings, G.S. 15A-1340.36(c).
The court of appeals’ decision last January in State v. McKenzie was big news in the DWI world. The state’s intermediate appellate court held the one-year disqualification of a defendant’s commercial driver’s license (CDL) stemming from charges that he drove his personal vehicle while impaired amounted to criminal punishment. Thus, the court of appeals concluded, the constitutional prohibition against double jeopardy prevented the defendant from subsequently being criminally prosecuted for the impaired driving charge itself. The decision, issued 2-1 over a dissent, was a surprise to many, including me. If it stood, it meant that thousands of commercial driver’s license holders who were disqualified as commercial drivers upon being charged with impaired driving could not thereafter be prosecuted. The North Carolina Supreme Court quickly issued a writ of supersedeas and stayed enforcement of the court’s judgment.
Per Curiam Reversal. On Friday, the state supreme court in a per curiam opinion adopting the reasoning of the dissenting opinion below reversed the decision of the court of appeals.
Judge Robert C. Hunter’s dissent below. The defendant in McKenzie argued two grounds for dismissal of his DWI charges. First, he argued that prosecuting him for DWI after revoking his commercial driver’s license for a year subjected him to multiple punishments for a single offense, thus violating double jeopardy. Like the majority, the dissent employed the seven-factor analysis from Hudson v. United States, 522 U.S. 93 (1997) to evaluate whether the CDL disqualification was civil or criminal in nature. Unlike the majority, the dissent concluded that under this test the CDL revocation was a civil sanction rather than a criminal penalty.
Hudson inquiry. The Hudson analysis begins with a two part inquiry:
(A) Did the legislature indicate a preference for a criminal or civil label?
(B) If the legislature indicated that the sanction was civil, was it so nevertheless so punitive as to be transformed into a criminal penalty?
Seven-factor test. Seven factors then are employed to evaluate the second question:
1. Was the sanction an affirmative disability or restraint?
2. Was it historically regarded as punishment?
3. Is a finding of scienter required?
4. Does the sanction promote retribution and deterrence, the traditional aims of punishment?
5. Is the behavior to which it applies already a crime?
6. May a purpose other than criminal punishment rationally be assigned to the sanction?
7. Is the sanction excessive in relation to its non-punitive purpose?
As applied to G.S. 20-17.4. The dissent noted that while G.S. 20-17.4, the statute requiring a one-year CDL disqualification upon issuance of a civil license revocation arising from an implied consent charge, did not label the revocation as criminal or civil, the state supreme court long has viewed driver’s license revocations as civil rather than criminal in nature and has focused on their remedial purpose. The length of the CDL revocation period did not change this analysis. CDL penalties generally are more severe than licensure penalties for other drivers because of the greater threat of danger posed by vehicles driven with a commercial license—among them 18-wheelers.
With regard to the second inquiry under Hudson, the dissent determined that the defendant did not establish the “clearest proof” necessary to transform a civil penalty into a criminal one. The defendant conceded that first three factors did not support a finding of criminal punishment. As to the fourth factor, the dissent viewed the deterrent effect of the CDL disqualification as substantially outweighed by the overriding remedial purpose of protecting the public from the great harm posed by commercial vehicles. The dissent viewed the deterrent effect as further mitigated by the fact that the statute only disqualified the defendant from driving a commercial vehicle, not a private passenger vehicle.
Factor five weighed in on the criminal sanction side of the scales, as the behavior giving rise to the revocation is a crime. But factors six and seven supported the notion that the sanction was civil. The dissent again cited public safety as the remedial purpose and determined that a one-year CDL disqualification was not excessive. The sanction applies only to commercial driver’s licenses, an arena in which the state has a greater interest in the public’s safety than with the driving of regular passenger vehicles.
Conclusion. Thus, based on its application of Hudson, the dissent concluded that prosecuting the defendant on the underlying DWI charges would not violate double jeopardy. The Supreme Court’s adoption of this reasoning affirms the earlier determination by Superior Court Judge Phyllis Gorham that principles of double jeopardy did not bar the defendant’s prosecution.
Due Process concerns. The defendant also argued that his one year CDL disqualification violated his due process rights. The majority of the court of appeals concluded that this claim was moot because the one-year revocation already had terminated. The dissent applied an exception to the mootness doctrine to allow consideration of the issue, but nevertheless found that the defendant’s claim failed as it was not properly before the court. The defendant could not challenge the propriety of the civil CDL disqualification in the criminal proceeding, but instead was required to raise any such claim in a civil action against DMV. Thus, the dissent concluded that the superior court erred in considering the defendant’s due process claim. The dissent noted, however, its concern that the failure to provide the defendant with any procedural mechanism to challenge the disqualification may violate due process.
What is the basis for the indefinite license revocation reflected in the driving record entry below?
A. A revocation under G.S. 20-24.1 for failure to appear for a motor vehicle offense.
B. A revocation under G.S. 20-24.1 for failure to pay a fine, penalty or court costs ordered by the court upon conviction of a motor vehicle offense.
C. A one-year revocation under G.S. 20-17(a)(2) for conviction of DWI that is extended by G.S. 20-17.6(b).
D. It is not possible, without additional information, to determine the reason for the revocation.
This entry reflects a driver’s license revocation entered pursuant to G.S. 20-17(a)(2) for conviction of impaired driving. The person committed the offense on June 25, 2010 and was convicted on October 25, 2010. Her license was revoked for one year. G.S. 20-19 (c1). (Had the record been printed before October 25, 2011, the “INDEF” entry would have contained the date 10-25-11.) The asterisk beside the conviction indicates that DMV has not yet received the certificate of completion reflecting that the person completed his or her substance abuse assessment or treatment. Thus, when the one-year revocation period expired, the revocation did not end, as it otherwise would have, but instead continued pursuant to the provisions of G.S. 20-17.6(b). So, answer C is correct.
How can I be sure?
There are several ways in which a person’s license may be indefinitely suspended in connection with impaired driving charges. A person may have his license revoked for a civil license revocation under G.S. 20-16.5. Unlike the driving record entry above, these revocations contain the entry “SUSP: 30 DAY CIVIL REVOCATION (SUSPENSION).” A person’s driver’s license may be revoked for her failure to appear or failure to pay a fine, penalty or court costs. G.S. 20-24.1. Entries for those revocations state “SUSP: FAILURE TO APPEAR,” or “SUSP: FAILURE TO PAY FINE.” The entry above, in contrast, reflects that the revocation is for conviction of impaired driving under G.S. 20-138.1.
Driver’s license revocations for convictions of impaired driving under G.S. 20-138.1 never begin as indefinite revocations. Instead they are for a term of years or are permanent. The revocation period is four years if the person is convicted of impaired driving and has a previous conviction for an offense involving impaired driving that occurred within three years before the offense for which the person’s license is being revoked. G.S. 20-19(d). Thus, if the person whose driving record is depicted above previously had been convicted of impaired driving for an offense that occurred on June 26, 2007, the revocation period would have been four years.
The revocation period is permanent for a person convicted of impaired driving who previously has been convicted of two or more offenses involving impaired driving, with the most recent of those offenses occurring within five years before the date of the offense for which the person’s license is being revoked. G.S. 20-19(e). No conviction more than ten years old may be considered (unless the offense occurred in a commercial motor vehicle or was committed by the holder of a commercial driver’s license). G.S. 20-36. All other revocations for conviction of impaired driving under G.S. 20-138.1 are for one year. G.S. 20-19(c1). The “1” beside “OFFENSE OF DRIVING WHILE IMPAIRED” indicates that DMV considers this a first conviction for revocation purposes.
In order for a person whose license is revoked for impaired driving to have his license restored after the period of revocation ends, DMV must receive a certificate of completion. G.S. 20-17.6(b). To obtain a certificate of completion, the person must have a substance abuse assessment and, depending on the results of the assessment, complete either an alcohol or drug education school (ADET) or a substance abuse treatment program. G.S. 20-17.6(c). Moreover, the revocation period for a person whose license is revoked for a conviction of driving while impaired in violation of G.S. 20-138.1 is extended until DMV receives the certificate of completion. G.S. 20-17.6(b).
A person convicted of driving while impaired based on an offense that occurred while his or her license was revoked for an impaired driving revocation may have her sentence enhanced by the grossly aggravating factor in G.S. 20-179(c)(2). This factor applies if, in committing the instant impaired driving offense, the person drove a motor vehicle on a highway while her license was revoked and the revocation was an impaired driving revocation as that term is defined in G.S. 20-28.2(a). Revocations under G.S. 20-17(a)(2) are included among impaired driving revocations. That same rule applies when those revocations are extended pursuant to G.S. 20-17.6. See State v. Coffey, 189 N.C. App. 382, 386 (2008) (concluding in an impaired driving case in which the defendant’s earlier conviction-based impaired driving revocation was extended under G.S. 20-17.6 that “there was overwhelming and uncontroverted evidence that at the time of the offense, defendant was driving while his license was revoked and that such revocation was an impaired driving revocation”). So, if the person whose driving record is set forth above drives a motor vehicle while impaired on a highway on August 11, 2013 and is convicted under G.S. 20-138.1 she will be sentenced, at a minimum, to Level One punishment. Two grossly aggravating factors apply. She has a prior conviction for an offense involving impaired driving within seven years (G.S. 20-179(c)(1)), and she drove a motor vehicle while impaired on a highway while subject to an impaired driving revocation (G.S. 20-179(c)(2)).
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?
Several recent stories in the News and Observer (here, here, here, and here) have chronicled the SBI’s investigation into orders entered in certain impaired driving cases by former Wake County District Court Judge Kristin Ruth, who resigned last month. Newspaper reports characterize the orders at issue as purporting to alter the conviction date for impaired driving convictions that originally were entered in district court, were appealed to superior court, and subsequently were remanded to district court for resentencing after the appeals were withdrawn. (For more about the appeal, remand and resentencing process in DWI cases, see this post.) Ruth, who was not the judge who re-sentenced the named defendants in district court after their cases were remanded, reportedly entered orders after the new sentencing hearing was held and the new judgment imposed stating that the defendants’ convictions occurred at some earlier date. Ruth has stated that James Crouch, a defense attorney, submitted the orders to her and that she signed them without reading them.
Newspaper reports suggest that the benefit that might inure to a defendant from changing the date of his or her conviction or judgment for an impaired driving offense is a shortening of his or her post-conviction license revocation period. DMV, however, reportedly has said that none of the defendants named in the orders had their licenses reinstated early. That these post-conviction orders did not so benefit the defendants involved is not particularly surprising in light of the procedures that govern license suspension after a conviction for DWI. I thought it might be worthwhile to spend a few minutes exploring how that process works.
Clerks of court are required to send to DMV a record of “[a] conviction of a violation of law regulating the operation of a vehicle,” which, of course, includes records of convictions for DWI. G.S. 20-24(b)(1). When DMV receives notice that a person has been convicted of DWI, it must revoke “forthwith” the person’s license. G.S. 20-17(a)(2). The revocation period for a first-time DWI offender is one year. G.S. 20-19(c1). DMV may only revoke a person’s license, however, upon final conviction of a qualifying offense. See G.S. 20-4.01(4a) (defining conviction as “a final conviction”). For a conviction to be final, not only must the person be adjudged guilty but a judgment also must be entered from which the defendant may exercise his or her right to appeal. Moreover, DWI convictions in district court from which a defendant has given notice of appeal to superior court, are not final for purposes of imposing a license revocation, just as they are not final for purposes of sentencing. Thus, while a defendant’s conviction in district court for DWI is the triggering event for a license revocation based upon that conviction, it is not always the date on which the post-conviction revocation period begins.
A defendant may render the post-conviction revocation period immediately applicable by surrendering at sentencing his or her driver’s license to the clerk of court. See G.S. 20-24(a). When this occurs, the clerk provides the defendant with form DL-53, which serves as the defendant’s receipt for the surrender of his or her license and calls for the defendant’s signature acknowledging that his or her license is suspended as of that date. The clerk then either destroys the license or forwards it to DMV. The DL-53 is transmitted to DMV and the date of receipt noted on that form is recorded as the beginning date for the post-conviction revocation in the person’s driving record.
When, however, a defendant does not surrender his or her license at sentencing, the post-conviction revocation is not immediately effective. Instead, DMV imposes the revocation after it is notified by the clerk of the conviction. After receiving notice, DMV sends the driver a letter notifying him or her that the revocation becomes effective on 12:01 a.m. on the eleventh day after the notification. This ten-day notice period is not explicitly required by statute, but corresponds to the ten-day period for filing a notice of appeal to superior court for trial de novo, thus ensuring that DMV does not impose a collateral licensure consequence for a district court conviction that is not yet final.
Thus, it is the clerk’s provision of notice to DMV or the defendant’s surrender of his or her license to the clerk at sentencing—rather than the date of conviction or sentencing—that marks the inception of the revocation period resulting from a conviction for DWI.
There is an exception to the mandatory revocation rule for circumstances in which DMV does not receive a record of a defendant’s conviction until more than a year after it is entered. G.S. 20-24(b1). In such a case, DMV may, but is not required to, substitute a period of probation for all or part of the revocation required. I’m doubtful that DMV would view this provision as applicable to a circumstance, such as the one described above, in which it received notice of a conviction, imposed a revocation, and later received amended notice stating that the conviction occurred at some earlier date.
Like the reporters who have covered this story, my guess is that the benefit sought in the cases under investigation related to license revocation. Given the way that post-conviction revocations are imposed, however, I can’t quite figure out how the orders were designed to afford that relief.
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.
When analysts from the Council of State Governments studied North Carolina’s sentencing laws and correctional system, one of their key findings was that revoked probationers account for a lot of new entries to prison each year—more than half. The Justice Reinvestment Act (S.L. 2011-192) responds to that finding in several ways, one of which is limiting the amount of a time a probationer can be imprisoned for certain violations of probation.
Under the new law, for probation violations occurring on or after December 1, 2011, the court may not revoke probation for violations of conditions other than the “commit no criminal offense” condition set out in G.S. 15A-1343(b)(1) or the new statutory “absconding” condition set out in G.S. 15A-1343(b)(3a). (The absconding condition is a new regular condition for offenders on probation for offenses that occur on or after December 1, 2011. S.L. 2011-192, sec. 4.(d), as amended by S.L. 2011-412, sec. 2.5.) For other violations, the court may impose a period of “confinement in response to violation” under new G.S. 15A-1344(d2). I’ll refer to that confinement period in this post and in other publications as a “CRV” period (Confinement in Response to Violation). Others have termed it a “dunk.” Whatever you call it, it’s useful to have a terminology that makes clear than confinement under G.S. 15A-1344(d2) is different from other short-term confinement periods, like a “split” (special probation) or a “quick dip” (a short-term confinement option under new G.S. 15A-1343(a1)(3) that I’ll write about in my next post).
For felons, the CRV period is a flat 90 days. For misdemeanants, the CRV period is “up to 90 days.” The law goes on to say, however, that if the time remaining on the defendant’s sentence is 90 days or less, the CRV period “is for the remaining period of the sentence.” Because the vast majority of misdemeanor sentences are 90 days or less, a CRV period for a misdemeanant will almost always use up the defendant’s entire suspended sentence—making it look like a revocation. (There is some argument that the 90-days-or-less remaining caveat only applies to felonies. It uses the term “maximum imposed sentence,” which does not fit perfectly with the misdemeanor sentencing law.)
A defendant may only receive two CRV periods in a particular probation case. After that, the court can respond to future violations by revoking probation, even if the alleged violation is something other than a new crime or absconding. Conversely, the court is never allowed to impose CRV in response to a new criminal offense or absconding; for those violations, the court can either revoke probation or modify it in all the ways it can under existing law.
To sum up the rules, for probation violations that occur on or after December 1, 2011, the court can revoke probation for violations of the “commit no criminal offense” condition, violations of the new statutory “absconding” condition, and for defendants who have previously received two CRV periods. The court is never required to order CRV; it can always respond with other modifications like a split sentence, electronic house arrest, or a curfew, to name a few. That said, you can probably see that the State and the court may, in some cases, be drawn to CRV in response to early violations to set the table for a future revocation.
CRV confinement is similar to special probation, but it isn’t a split. For instance, it is not subject to the one-fourth rule of G.S. 15A-1351(a) or G.S. 15A-1344(e). Also, there is no clear statutory provision for appealing a CRV period. Under G.S. 15A-1347 and existing case law, there is no right to appeal probation matters other than activation of a sentence or imposition of special probation. State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Perhaps there is an argument that CRV is an “activation” (or at least a partial activation) of sorts, and so it is appealable under G.S. 15A-1347.
There are some additional rules for CRV confinement. First, if a defendant is detained in advance of a violation hearing at which CRV is ordered, the judge must first credit that confinement time to the CRV period, with any excess time to be applied to a later-activated sentence. In other words, the court may not bank the pre-hearing credit the way it can when it orders a split sentence under G.S. 15A-1351. Second, when a defendant is on probation for multiple offenses, the law requires CRV periods to run concurrently on “all cases related to the violation.” Confinement is to be “immediate unless otherwise specified by the court.” The idea behind those provisions is that CRV periods for multiple cases should not be “stacked” to create a confinement period of longer than 90 days. Finally, the law specifies that CRV periods are served “in the correctional facility where the defendant would have served an active sentence.” I described the new rules for determining a defendant’s proper place of confinement in this prior post.
In every session I’ve taught about these new limitations on a court’s authority to revoke probation, I’ve been asked the same question: What about defendants who want to “invoke” their sentence (or “elect to serve” or whatever you might call it)? Can they still do that after Justice Reinvestment? As discussed here, the statutory provision allowing a probationer to “elect to serve” was repealed in the mid-1990s. A probationer can, however, admit to a violation, and then the court can revoke probation based on that. Under the new law, it seems that admissions will need to be to a new criminal offense or absconding in order to empower the court to revoke.
The North Carolina Supreme Court decided Lee v. Gore last Friday, affirming the court of appeals and holding that DMV lacked authority to revoke the petitioner’s driving privileges pursuant to G.S. 20-16.2 based upon an affidavit that failed to allege that he willfully refused to submit to a chemical analysis. I’ve written about this case before, so I’ll skip over the facts (discussed here) and the court of appeals’ opinion upon rehearing (discussed here).
The supreme court characterized its disposition of the case as “turn[ing] on the limited authority of the DMV,” an agency that “possesses only those powers expressly granted to it by our legislature or those which exist by necessary implication in a statutory grant of authority.” Slip op. at 6-7. The court considered G.S. 20-16.2, the statute conferring upon DMV the authority to revoke a person’s license for willfully refusing a chemical analysis, “clear and unambiguous,” thereby leaving no room for judicial construction or deference to the agency’s interpretation of its provisions. Slip op. at 5.
The court explained that G.S. 20-16.2 enables DMV to act when a driver charged with an implied-consent offense refuses to submit to a chemical analysis. When such a refusal occurs, G.S. 20-16.2(c1) requires the law enforcement officer and chemical analyst to execute an affidavit averring several facts, among them that the person “willfully refused to submit to a chemical analysis.” The officer then must immediately mail the affidavit to DMV. When DMV receives a “properly executed affidavit” pursuant to G.S. 20-16.2(c1), it must notify the person that his or her license is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests, in writing, a hearing before DMV.
The court cited earlier appellate opinions confirming that a refusal “must be willful to suspend that person’s driving privileges.” The court emphasized the requirement for “a conscious choice purposefully made,” though, as I noted in the last post about this case, such a choice apparently also is required for a mere refusal, which has been described as noncompliance stemming from “a positive intention to disobey,” see Joyner v. Garrett, 279 N.C. 226, 233 (1971). Though the court recognized that the test record ticket attached to the affidavit in Lee’s case indicated the test was “refused,” it determined that the requirements of G.S. 20-16.2(c1) were not met as neither the ticket nor the affidavit “indicated that petitioner’s refusal to participate in chemical analysis was willful.” This missing allegation rendered the affidavit faulty and thus not “properly executed.” Without a properly executed affidavit, the court reasoned, DMV had no authority to act.
The court thus made clear that a “willful refusal” must specifically be averred before DMV is authorized to revoke a person’s license pursuant to G.S. 20-16.2. Nevertheless, the court’s failure to clarify how a willful refusal differs from a refusal leads me to wonder what findings underlie a chemical analyst’s allegation that a person has willfully refused a chemical analysis and whether those findings are consistent among analysts.
The high court declined to “determine the outer boundaries of what constitutes ‘a properly executed affidavit’ under G.S. 20-16.2(d).” Slip op. at 12. Nevertheless, it opined that–in addition to an affidavit that failed to allege a willful refusal–an affidavit that was “materially altered outside the presence of someone authorized to administer oaths,” as occurred in Lee, was not “properly executed.” Thus, affidavits submitted pursuant to G.S. 20-16.2 that fail to allege a willful refusal or that have been amended after execution do not confer authority upon DMV to act. Other sorts of deficiencies might not deprive DMV of authority. For example, the court of appeals held in Hoots v. Robertson, __ N.C. App. __ (August 2, 2011), that an affidavit that erroneously stated that the petitioner refused testing two minutes before the time listed for the refusal on the test record ticket was properly executed as there is no requirement that the affidavit state when the refusal occurred.
The Lee court characterized DMV’s burden upon receipt of an improperly executed affidavit as “light,” stating that DMV could have asked the officer in Lee whether the affidavit omitted information. If the officer responded affirmatively, DMV could then have requested that the officer swear out a new, properly executed affidavit. DMV already utilizes a practice similar to that described by the court. When it receives a facially deficient affidavit, DMV returns the affidavit to the law enforcement officer along with a form DL-168 on which a DMV employee identifies the items that need to be corrected or completed. Obviously, any affidavit amended after its initial execution must be re-executed before being sent to DMV.
According to data from the Division of Community Corrections, 1270 probationers had their probation revoked in December 2010. Of those, 232 revocations were based on new crimes. I’ve written before about some of the issues associated with new criminal charges as a violation of probation, a post you can read here. To sum that post up, if a court is going to proceed with a probation violation hearing before the defendant has pled to or been tried on a new criminal charge, it must make an independent factual finding that the defendant committed the alleged criminal act. The revocation should not be based on the mere fact that the probationer has been charged.
Many probationers do get their day in court on new criminal charges before any related probation hearing on the matter. Sometimes, even when a probationer is convicted of a new charge, the court entering judgment on the conviction will write on the judgment something like “THIS CONVICTION SHALL NOT VIOLATE THE DEFENDANT’S CURRENT PROBATION,” perhaps also identifying the file number of the preexisting suspended sentence.
Does the court sentencing the new conviction have the power to do that?
It’s not clear to me that it always does. A probationer who is convicted of a new crime other than a Class 3 misdemeanor has almost certainly violated the “commit no criminal offense” condition of probation. So the question is not whether it’s a violation, but rather what the court hearing any ensuing probation violation will choose to do in response to it.
Generally, the probation violation hearing process begins when a probation officer files a violation report (DCC-10). That report gives the probationer notice of the violations alleged and, if the period of probation is near its end, preserves the court’s power to act on the violation after probation expires under G.S. 15A-1344(f) (discussed at the end of this post). Without a violation report, there really isn’t any probation matter before the conviction court when it enters judgment on a new criminal case. The court’s proclamation that the new crime is not a violation of the defendant’s existing probation seems premature at best.
If a proper probation violation hearing would be held before the same court (district or superior, and in the same district) as the court sentencing the new crime, then I suppose the defendant could waive the 24-hour notice of a probation violation required by G.S. 15A-1345(e) and allow the probation matter to come before the court right away. If the court wanted the defendant’s probation in a prior case to continue unchanged despite the new conviction, it could enter an order (on form AOC-CR-609) saying so. The State may prefer that approach, as the finding of a willful violation could later serve as an aggravating factor under G.S. 15A-1340.16(d)(12a) even if it doesn’t result in a revocation.
The situation is a little more complicated when the court sentencing the new crime is not the same court that would hear any related probation violation hearing. Typically (at least based on questions I receive), a superior court judge will write on a judgment that the defendant’s new felony conviction shall not be a violation of his or her ongoing district court probation. It seems pretty clear to me that the superior court doesn’t have jurisdiction over the probation matter in that circumstance. Only a judge “entitled to sit in the court which imposed probation” has power to reduce, terminate, continue, extend, modify, or revoke it under G.S. 15A-1344(a). The superior court could recommend that the new conviction not serve as a basis for revocation, but I don’t think the recommendation is binding on the court that ultimately hears the probation matter. Of course, if everyone knows as a practical matter that the appeal of any district court revocation would wind up before the same superior court judge who said the new crime should not be a violation, it might not be worth pursuing in district court.
Another variation on this situation is when the State agrees as part of a plea bargain on a new criminal charge not to pursue a probation revocation based on the conviction. In those cases I think the State would be bound by its agreement, making the new conviction effectively revocation-proof.