Motor Vehicles_driver's license_suspension_driving with revoked
Virginia license but valid North Carolina license
The superior court erred by enjoining DMV from revoking
petitioner's driver's license for an out-of-state conviction of
driving while his license was revoked where petitioner was a
truck driver with licenses in North Carolina and Virginia, his
Virginia license was suspended for failure to pay costs
associated with a Virginia case, he was subsequently convicted in
Virginia of driving with a suspended license, Virginia notified
the North Carolina DMV of the conviction, DMV notified petitioner
that his North Carolina license would be suspended for twelve
months for commission of an offense in another state that would
be grounds for suspension in North Carolina, petitioner paid the
Virginia fine and his Virginia license was reinstated, and DMV
sustained the continued suspension of petitioner's North Carolina
license. North Carolina does not allow reinstatement merely upon
payment of outstanding fees, and the superior court must affirm
the suspension if the license is subject to suspension in fact
and in law.
Judge WYNN dissenting.
No brief filed for petitioner Christopher Howard Olive.
Attorney General Michael F. Easley, by Associate Attorney
General Kimberly P. Hunt, for respondent.
BRYANT, Judge.
This appeal arises out of the trial court's reversal of the
North Carolina Department of Transportation Division of Motor
Vehicles [DMV] hearing officer's determination that suspension of
petitioner's license was proper. Petitioner, Christopher Howard Olive, is a long-distance truck
driver who resides in North Carolina and holds driver's licenses in
North Carolina and Virginia. His Virginia license was suspended
for failure to pay costs associated with a Virginia case. A few
months later, he was charged with and convicted of driving while
license suspended in Virginia. The State of Virginia notified DMV
of the conviction. DMV notified petitioner that his North Carolina
license would be suspended for twelve months pursuant to N.C.G.S.
§ 20-16(a)(7), which allows North Carolina to suspend or revoke a
driver's license upon commission of an offense in another state
that would be grounds for suspension in North Carolina. N.C.G.S.
§ 20-16(a)(7) (1999). Petitioner then paid the Virginia fine for
driving with a suspended license, and Virginia reinstated his
license. DMV, however, continued to pursue the suspension.
Petitioner requested a hearing with a DMV hearing officer, who
sustained the suspension despite evidence of the reinstatement of
petitioner's Virginia license. Petitioner filed a petition for a
preliminary injunction and a temporary restraining order. The
petition was granted. Petitioner requested a de novo hearing in
the Superior Court of Johnston County. The Superior Court ruled
that DMV abused its discretion in suspending petitioner's license.
DMV appeals.
We note at the outset that DMV raised two issues in the
assignments of error in the record on appeal that it did not
discuss in its brief. Assignments of error not argued in the
appellant's brief are deemed abandoned. N.C. R. App. P. 28(b)(5).
In DMV's remaining assignment of error, DMV argues that the trialcourt erred in enjoining DMV from revoking petitioner's driver's
license for an out-of-state conviction of driving while license
revoked. We agree and vacate the trial court's order.
DMV has the exclusive power to issue, suspend or revoke a
driver's license. Smith v. Walsh, 34 N.C. App. 287, 289, 238
S.E.2d 157, 159 (1977). The petitioner has the right to have the
Superior Court review DMV's actions de novo. Smith, 34 N.C. App.
at 287, 238 S.E.2d at 157. “On appeal and hearing de novo in
superior court, that court is not vested with discretionary
authority. It makes judicial review of the facts, and if it finds
that the license of petitioner is in fact and in law subject to
suspension or revocation the order of the Department must be
affirmed, otherwise not.” In re Donelly, 260 N.C. 375, 381, 132
S.E.2d 904, 908 (1963); Smith v. Walsh, 34 N.C. App. 287, 238
S.E.2d 157 (1977) (holding that superior court did not have
discretionary power to revoke DMV suspension of motorist's driving
privilege). When reviewing the trial court's decision, the Court
of Appeals first determines whether the trial court applied the
correct scope of review, then determines whether the court did so
properly. Id.
In this case, petitioner was convicted in Virginia of driving
with a suspended license. N.C.G.S. § 20-16 provides that DMV may
suspend a person's license upon a showing that the person committed
an offense in another state that would be grounds for suspension in
this State. N.C.G.S. § 20-16(a)(7) (1999). A problem arises
because in Virginia, after a conviction of driving with a suspendedlicense, a license may be reinstated upon payment of outstanding
fees. North Carolina law does not allow reinstatement merely upon
payment of outstanding fees. Therefore, the issue we address is
whether, under North Carolina law, the Superior Court may enjoin
DMV from suspending the license of a driver whose license is
suspended in another state but later reinstated in that state. We
conclude that it may not.
Although there are no North Carolina cases directly on point,
we look to the statutes for guidance. Section 20-16 clearly and
unambiguously gives DMV the discretionary authority to suspend or
revoke the license of a driver who has committed an offense in
another state if the offense would be grounds for suspension in
North Carolina. N.C.G.S. § 20-16(a)(7) (1999). N.C.G.S. § 20-28
authorizes DMV to revoke the license of anyone convicted of driving
while license revoked. N.C.G.S. § 20-28 (1999). Revocation and
suspension are used synonymously. N.C.G.S. § 20-4.01(36) (1999).
When construing statutes, our courts have stated, “'Where the
language of a statute is clear and unambiguous . . . the courts
must construe the statute using its plain meaning.'” Springer-
Eubank Co. v. Four County Elec. Membership Corp., 142 N.C. App.
496, 499, 543 S.E.2d 197, 200 (2001) (alteration in original)
(quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209,
388 S.E.2d 134, 136 (1990) (citation omitted)). By statute, DMV
had discretionary authority to suspend petitioner's license. By
mandate, the Superior Court upon review de novo must affirm the
suspension if the license is subject to suspension in fact and inlaw. Because petitioner was convicted in Virginia, we do not see
how the trial court could enjoin DMV without exercising its
discretion. Had petitioner only been charged but not convicted in
Virginia, the outcome might be different. However, we decline to
entertain this issue at this time. Because the Superior Court
lacked discretionary authority, we must vacate its order.
Vacated.
Judge McCULLOUGH concurs.
Judge WYNN dissents with a separate opinion.
I agree with Superior Court Judge Knox Jenkins' rationale for
finding that suspension of the petitioner's driver license under
N.C. Gen. Stat. § 20-16(a)(7) was improper. That statute permits
DMV to suspend or revoke a driver's license upon commission of an
offense in another state that would be grounds for suspension in
North Carolina. The petitioner in this case was convicted in the
State of Virginia for driving while his Virginia license was
expired; his North Carolina license was in tact. As long as a
driver possesses a valid driver's license, it is not an offense in
the State of North Carolina to drive in this State while under a
suspension of license in another state.
Apparently, the General Assembly recognized that there may be
some offenses in another state that would not be grounds for
suspension in North Carolina. While it is tempting to say that the
offense in this case was driving while license suspended; in fact,
the offense was driving in the State of Virginia while his Virginialicense was suspended.
(See footnote 1)
That is not an offense in North Carolina,
particularly for this truck driver who had a valid North Carolina
license.
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