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appealed to superior court, and subsequently were remanded to district court for resentencing after the appeals were withdrawn.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.