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 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.