On appeal, the State contends that the superior court
committed reversible error by concluding that the 30-day revocation
of defendant's driver's license pursuant to N.C.G.S. § 20-16.5
constitutes punishment for purposes of double jeopardy analysis
under the United States Constitution. The State argues that the
30-day driver's license revocation contained in N.C.G.S. § 20-16.5
is a civil sanction promulgated to support highway safety.
Therefore, the State argues, because the license revocation is a
civil sanction rather than a criminal penalty, the Double Jeopardy
Clause does not bar defendant's subsequent criminal prosecution for
DWI. By a cross-assignment of error, defendant argues,
inter alia,
that N.C.G.S. § 20-16.5 is unconstitutional in that it violates the
Double Jeopardy Clauses contained in the United States and North
Carolina Constitutions. Defendant contends that under
Hudson v.
United States, 522 U.S. 93, 139 L. Ed. 2d 450 (1997), the 30-day
driver's license revocation contained in N.C.G.S. § 20-16.5constitutes a criminal punishment and, therefore, the double
jeopardy doctrine is properly invoked to prevent defendant's
subsequent criminal prosecution for DWI.
The Double Jeopardy Clause prohibits "a second prosecution for
the same offense after acquittal, a second prosecution for the same
offense after conviction, and multiple punishments for the same
offense."
Department of Revenue of Mont. v. Kurth Ranch, 511 U.S.
767, 128 L. Ed. 2d 767 (1994). "The Law of the Land Clause
incorporates similar protections under the North Carolina
Constitution."
State v. Oliver, 343 N.C. 202, 205, 470 S.E.2d 16,
18 (1996) (citing N.C. Const., art. I, § 19). On appeal, defendant
relies upon
Hudson v. United States, 522 U.S. 93, 139 L. Ed. 2d 450
(1997), cited in the trial court's 12 July 1999 order, to support
his argument that the civil revocation of his driver's license
constituted punishment for double jeopardy purposes under both the
United States and North Carolina Constitutions.
In
Hudson, the United States Supreme Court modified the
standard for double jeopardy analysis. According to the
Hudson
Court, "the Double Jeopardy Clause does not prohibit the imposition
of all additional sanctions that could, 'in common parlance,' be
described as punishment
." Id. at 98-99, 139 L. Ed. 2d at 458
(quoting
United States ex rel. Marcus v. Hess, 317 U.S. 537, 549,
87 L. Ed. 443, 452 (1943)). Instead, "[t]he [Double Jeopardy]
Clause protects only against the imposition of multiple criminal
punishments for the same offense."
Id. at 99, 139 L. Ed. 2d at 458
(citation omitted).
The Court then advanced a two-part inquiry fordetermining whether a statutory scheme imposes punishment for
double jeopardy purposes:
Whether a particular punishment is criminal or
civil is, at least initially, a matter of
statutory construction. A court must first
ask whether the legislature, "in establishing
the penalizing mechanism, indicated either
expressly or impliedly a preference for one
label or the other." Even in those cases
where the legislature "has indicated an
intention to establish a civil penalty, we
have inquired further whether the statutory
scheme was so punitive either in purpose or
effect" as to "transfor[m] what was clearly
intended as a civil remedy into a criminal
penalty."
In evaluating the second part of the analysis, the
Hudson Court
counseled in favor of courts applying the factors previously listed
in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d
644, 660-61 (1963).
Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459.
These factors include:
(1) "[w]hether the sanction involves an
affirmative disability or restraint"; (2)
"whether it has historically been regarded as
a punishment"; (3) "whether it comes into play
only on a finding of
scienter"; (4) "whether
its operation will promote the traditional
aims of punishment--retribution and
deterrence; (5) "whether the behavior to which
it applies is already a crime"; (6) "whether
an alternative purpose to which it may
rationally be connected is assignable for it";
and (7) "whether it appears excessive in
relation to the alternative purpose assigned."
Id. at 99-100, 139 L. Ed. 2d at 459. The Court cautioned in
Hudson
that no one factor is controlling.
Id. at 101, 139 L. Ed. 2d at
460. In
Seling v. Young, 531 U.S. 250, 262, 148 L. Ed. 2d 734,
746 (2001), the United States Supreme Court also stated that "theclearest proof is required to override legislative intent and
conclude that an Act denominated civil is punitive in purpose or
effect."
Thus, pursuant to the two-part inquiry articulated in
Hudson,
we must begin by examining the purpose behind N.C.G.S. § 20-16.5,
the statute at issue. N.C.G.S. § 20-16.5 was amended by the
General Assembly effective 1 December 1997. Prior to the 1
December 1997 amendment, the statute provided for a 10-day pre-
trial revocation of an individual's driver's license for operating
a motor vehicle with an alcohol concentration of 00.08 or greater
or for refusing to submit to a chemical analysis. The amendment to
N.C.G.S. § 20-16.5 provides for an immediate 30-day civil license
revocation "for certain persons charged with implied-consent
offenses." An individual's driver's license is subject to
revocation under N.C.G.S. § 20-16.5 if:
(1) A charging officer has reasonable grounds
to believe that the person has committed an
offense subject to the implied-consent
provisions of G.S. 20-16.2;
(2) The person is charged with that offense
as provided in G.S. 20-16.2(a);
(3) The charging officer and the chemical
analyst comply with the procedures of G.S. 20-
16.2 and G.S. 20-139.1 in requiring the
person's submission to or procuring a chemical
analysis; and
(4) The person:
a. Willfully refuses to submit to the
chemical analysis;
b. Has an alcohol concentration of 0.08
or more within a relevant time after
the driving;
c. Has an alcohol concentration of 0.04
or more at any relevant time after
the driving of a commercial vehicle;
or
d. Has any alcohol concentration at any
relevant time after the driving andthe person is under 21 years of age.
N.C.G.S. § 20-16.5(b). The statute does, however, provide for a
limited driving privilege during the 30-day period of revocation,
so long as:
(1) At the time of the alleged offense the
person held either a valid drivers license or
a license that had been expired for less than
one year; &nbs
p;
(2) Does not have an unresolved pending
charge involving impaired driving except the
charge for which the license is currently
revoked . . . or additional convictions of an
offense involving impaired driving since being
charged for the violation [at issue];
(3) The person's license has been revoked for
at least 10 days if the revocation is for 30
days . . .; and
(4) The person has obtained a substance abuse
assessment from a mental health facility and
registers for and agrees to participate in any
recommended training or treatment program.
N.C.G.S. § 20-16.5(p).
In the case before us, defendant argues that although N.C.G.S.
§ 20-16.5 is entitled "Immediate civil license revocation for
certain persons charged with implied-consent offenses," when the
General Assembly amended the statute in 1997, the statutory scheme
became so punitive, by tripling the revocation period, as to
transform the remedy into a criminal punishment.
In support of his contention, defendant presents as evidence
a statement by then Governor James B. Hunt, Jr. that the 30-day
revocation was introduced as a part of the State's on-going efforts
to "crack down on drunk drivers and let them know they'll pay the
price."
See "Gov. Hunt Announces Plans to Toughen Penalties for
Drunk Drivers," Press Release, State of North Carolina, Office of
the Governor, 16 October 1996. Defendant asserts that thisstatement, as well as statements from the Governor's Highway Safety
Committee, prove that the extension of the 10-day revocation period
was intended to be punitive.
When construing statutes, our courts should always give effect
to the intent of the General Assembly.
State v. Fulcher, 294 N.C.
503, 243 S.E.2d 338 (1978). However,
[w]hile the cardinal principle of statutory
construction is that the words of the statute
must be given the meaning which will carry out
the intent of the Legislature . . . .
[t]estimony, even by members of the
Legislature which adopted the statute, as to
its purpose and the construction intended to
be given by the Legislature to its terms, is
not competent evidence upon which the court
can make its determination as to the meaning
of the statutory provision.
Milk Commission v. Food Stores, 270 N.C. 323, 332-33, 154 S.E.2d
548, 555 (1967). Thus, "[e]ven the commentaries printed with the
North Carolina General Statutes, which were not enacted into law by
the General Assembly, are not treated as binding authority by this
Court."
Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651,
657, 403 S.E.2d 291, 295 (1991). Accordingly, press releases and
commission recommendations offered by defendant as evidence of the
punitive purpose behind N.C.G.S. § 20-16.5 are in no manner binding
authority on this Court.
In
Henry v. Edmisten, 315 N.C. 474, 340 S.E.2d 720 (1986) and
State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996), our Supreme
Court interpreted the prior version of N.C.G.S. § 20-16.5. Both
the
Henry Court and the
Oliver Court held that the 10-day driver's
license revocation did not constitute punishment for purposes ofdouble jeopardy analysis under either the Double Jeopardy Clause of
the United States Constitution or the Law of the Land Clause of the
North Carolina Constitution.
In
Henry, our Supreme Court clearly established that the
original legislative intent of N.C.G.S. § 20-16.5 was the promotion
of highway safety. In
Henry, the plaintiffs, both of whom were
charged with driving while impaired, argued that the 10-day
revocation prescribed by N.C.G.S. § 20-16.5 was "not reasonably
related to the state's interest in shielding the public from the
danger posed by a driver who fails a breath test."
Henry, 315 N.C.
at 489, 340 S.E.2d at 730. The
Henry plaintiffs further argued
that the "ten-day revocation [was] unnecessarily long if the
purpose [was] to protect the public from the hazards of an impaired
driver on the particular occasion for which he [was] arrested."
Id. The plaintiffs then suggested that "a twenty-four hour
revocation would be sufficient to achieve this purpose."
Id. Our
Supreme Court disagreed, stating:
Although one purpose of summary license
revocation is to safeguard the public from an
impaired driver on the particular occasion on
which the driver is arrested, the revocation
has a broader purpose. The statute
authorizing revocation assumes implicitly that
drivers who have driven impaired on one
occasion pose an appreciable risk of repeating
their conduct. We cannot say this assumption
is so unreasonable as to prevent the state
from summarily suspending a person's driving
privileges.
Id. The Court then concluded that "the summary revocation
procedure of § 16.5 is not a punishment but a highway safetymeasure . . . the bill as finally enacted reflects an intent by the
legislature for the revocation provision to be a remedial measure."
Id. at 495, 340 S.E.2d at 734.
Ten years later in
Oliver, our Supreme Court again examined
N.C.G.S. § 20-16.5. The
Oliver Court first noted that
"[h]istorically this Court has long viewed drivers' license
revocations as civil, not criminal, in nature."
Oliver, 343 N.C.
at 207, 470 S.E.2d at 20. The Court also stated that "[a]n
impaired driver presents an immediate, emergency situation, and
swift action is required to remove the unfit driver from the
highways in order to protect the public."
Id. at 209, 470 S.E.2d
at 21. Because "[s]uch a person . . . represents a demonstrated
present as well as [an] appreciable future hazard to highway
safety, [t]he safety of the impaired driver and other people using
the [S]tate's highways depends upon immediately denying the
impaired driver access to the public roads."
Id. at 208, 470
S.E.2d at 20, (quoting
Henry v. Edmisten, 315 N.C. 474, 494, 340
S.E.2d 720, 733 (1986)). Moreover, the Court stated,
[our Court] has long held that a driver's
license 'is not a natural or unrestricted
right, nor is it a contract or property right
in the constitutional sense. It is a
conditional privilege, and the General
Assembly has full authority to prescribe the
conditions upon which licenses may be issued
and revoked. The ten-day driver's license
revocation . . . merely signifies the failure
of the driver to adhere to the conditions
imposed by the legislature on the driver's
license. As such, it is not punishment.
Id. at 210, 470 S.E.2d at 21 (citations omitted). The only relevant difference between N.C.G.S. § 20-16.
5 when
it was analyzed and interpreted in
Henry and
Oliver and the statute
in its present form is that the revocation period has been
increased from ten days to thirty days. The function of the
legislation, however, did not change. The function and intent of
the statute is to remove from our highways drivers who either
cannot or will not operate a motor vehicle safely and soberly. The
purpose of license revocation in N.C.G.S. § 20-16.5 is clearly to
prevent unsafe and unfit drivers from operating vehicles and
endangering the citizens of North Carolina. Moreover, neither
Henry nor
Oliver predicated their double jeopardy analysis upon the
length of the revocation. Rather, both cases referred to driver's
license revocations generally. Defendant has offered no compelling
reason on appeal for us to depart from the legislative intent and
purpose of N.C.G.S. § 20-16.5 as established by our Supreme Court
in
Henry and
Oliver. Although we find no punitive purpose on the
face of N.C.G.S. § 20-16.5, we are aware that, at some point, a
further increase in the revocation period by the General Assembly
becomes excessive, even when considered in light of the well-
established goals of N.C.G.S. § 20-16.5. Whether it is a further
doubling or tripling of the revocation period, there is a point at
which the length of time can no longer serve a legitimate remedial
purpose, and the revocation provision could indeed violate the
Double Jeopardy Clause.
We must next examine whether the effect of N.C.G.S. § 20-16.5
is punitive in that it punishes a defendant twice for the sameoffense. In examining the effect of the law, the factors
articulated in
Kennedy "provide useful guideposts."
Hudson, 522
U.S. at 99, 139 L. Ed. 2d at 459;
see State v. Thompson, 349 N.C.
483, 508 S.E.2d 277 (1998). We therefore consider the seven
Kennedy factors. However, because N.C.G.S. § 20-16.5, as enacted,
reflects an "intent by the legislature for the revocation provision
to be a remedial measure,"
Henry, 315 N.C. at 495, 340 S.E.2d at
734, "'only the clearest proof' will suffice to override
legislative intent and transform what has been denominated a civil
remedy into a criminal penalty."
Hudson, 522 U.S. at 100, 139 L.
Ed. 2d at 459 (citation omitted).
The first
Kennedy factor requires a review of "[w]hether the
sanction involves an affirmative disability or restraint."
Hudson,
522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). In this
case, defendant argues that the 30-day driver's license revocation
and $50.00 revocation fee authorized by N.C.G.S. § 20-16.5 amount
to an "affirmative disability or restraint
." We disagree.
In
Hudson, the Court stated that an "affirmative disability or
restraint" generally is some sanction "approaching the 'infamous
punishment' of imprisonment."
Hudson, 522 U.S. at 104, 139 L. Ed.
2d at 462 (citations omitted). The
Hudson Court concluded that the
sanction at issue, indefinite prohibition from participating in the
banking industry, did not involve an "affirmative disability or
restraint."
Id. Likewise, in defendant's case, a 30-day driver's
license revocation and $50.00 revocation fee cannot be said to"approach the 'infamous punishment' of imprisonment."
Id.
(citation omitted).
The second
Kennedy factor asks whether, from a historical
perspective, the sanction has been viewed as punishment.
Historically, punishment has taken the forms of incarceration and
incapacitation. This form of punishment is available under N.C.
Gen. Stat. § 20-138.1, the DWI criminal statute. Incarceration and
incapacitation are not available under N.C.G.S. § 20-16.5.
Moreover, "revocation of a privilege voluntarily given," such as
a driver's license in this case, "is characteristically free of the
punitive element."
Hudson, 522 U.S. at 104, 139 L. Ed. 2d at 462,
(quoting
Helvering v. Mitchell, 303 U.S. 391, 399-400, 82 L. Ed.
917, 922 (1938));
see also Oliver, 343 N.C. at 210, 470 S.E.2d at
21 (stating that a driver's license is a conditional privilege for
which the General Assembly may prescribe conditions upon which
licenses may be issued and revoked). Finally, as previously noted
in
Oliver, our Supreme Court stated that "this Court has long
viewed drivers' license revocations as civil, not criminal, in
nature."
Id. at 207, 470 S.E.2d at 20. Accordingly, defendant has
failed to establish the second
Kennedy factor.
We agree with the State and defendant that the third
Kennedy
factor
, a finding of scienter, is not an element of the 30-day
license revocation under N.C.G.S. § 20-16.5.
The fourth
Kennedy factor asks whether the sanction promotes
the "traditional aims of punishment--retribution and deterrence."
Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459 (citation o
mitted).
The Supreme Court in
Hudson noted, however, that "all civil
penalties have some deterrent effect."
Id. at 102, 139 L. Ed. 2d
at 461. "If a sanction must be 'solely' remedial (
i.e., entirely
nondeterrent) to avoid implicating the Double Jeopardy Clause, then
no civil penalties are beyond the scope of the Clause."
Id.
Moreover, the Court continued, "the mere presence of a [deterrent
quality] is insufficient to render a sanction criminal [because]
deterrence 'may serve civil, as well as criminal goals.'"
Id. at
105, 139 L. Ed. 2d at 463 (quoting
United States v. Ursery, 518
U.S. 267, 292, 135 L. Ed. 2d 549, 570 (1996)).
We acknowledge that N.C.G.S. § 20-16.5 operates as a deterrent
to driving while impaired. Certainly, persons who choose to drive
while impaired know that if their actions are observed by law
enforcement, they will be charged with DWI and face a temporary
license revocation. However, "any deterrent effect a driver's
license revocation may have upon the impaired driver is merely
incidental to the overriding purpose of protecting the public's
safety."
Oliver, 343 N.C. at 209-10, 470 S.E.2d at 21. Thus, we
conclude that although N.C.G.S. § 20-16.5 does operate as a
deterrent, the deterrent effect of N.C.G.S. § 20-16.5 is
insufficient to implicate double jeopardy. Accordingly, this
factor does not weigh in defendant's favor.
The fifth
Kennedy factor asks "whether the behavior to which
[the statute] applies is already a crime."
Hudson, 522 U.S. at 99,139 L. Ed. 2d at 459 (citation omitted). Violating the impl
ied
consent offense of driving with an alcohol concentration of 0.08 or
more is a crime under N.C.G.S. § 20-138.1. However, "[t]his fact
is insufficient to render" the 30-day driver's license revocation
and $50.00 revocation fee "criminally punitive, particularly in the
double jeopardy context."
Id. at 105, 139 L. Ed. 2d at 462
(citations omitted).
The final two factors under the
Kennedy analysis require us to
decide whether there is a remedial purpose behind N.C.G.S. § 20-
16.5, and if so, whether the statute is excessive in relation to
the remedial purpose. Defendant concedes that there is a remedial
purpose behind the sanctions imposed by N.C.G.S. § 20-16.5, that
is, removing impaired drivers from the highway while they are a
risk to themselves and others. However, defendant argues that the
sanction imposed is excessive in relation to the remedial purpose.
We disagree.
As we have stated, N.C.G.S. § 20-16.5 serves the important
purpose of protecting the public from impaired drivers. "The
carnage caused by drunk drivers is well documented and needs no
detailed recitation here."
South Dakota v. Neville, 459 U.S. 553,
558, 74 L. Ed. 2d 748, 755 (1983). However, we are also mindful of
the burdens N.C.G.S. § 20-16.5 places on defendant, burdens which
may vary depending upon a defendant's economic status.
Nonetheless, given the gravity of the State's interest in
protecting the public from impaired drivers, we conclude that the
sanctions imposed by N.C.G.S. § 20-16.5 are not excessive inrelation to the remedial purpose.
Having examined N.C.G.S. § 20-16.5 in light of the two-part
analysis established by
Hudson, we reject defendant's argument that
Hudson requires a conclusion that the driver's license revocation
found in N.C.G.S. § 20-16.5 constitutes punishment for purposes of
double jeopardy analysis under both the Double Jeopardy Clause of
the United States Constitution and the Law of the Land Clause of
the North Carolina Constitution. Because we conclude that N.C.G.S.
§ 20-16.5 is neither punitive in purpose nor effect, we need not
reach defendant's remaining assignments of error in which he argues
that the limited driving privilege provided for in N.C.G.S. § 20-
16.5(p) does not negate the punitive nature of the statute because
N.C.G.S. § 20-16.5 violates the United States and North Carolina
Constitutions. Accordingly, we agree with the State that the trial
court erred when it granted defendant's motion to dismiss. We
reverse the 12 July 1999 order and remand for trial.
Reversed and remanded.
Judges WYNN and TIMMONS-GOODSON concur.
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