STATE OF NORTH CAROLINA
v
.
Wake County
No. 99 CRS 35138
ROBERT ANDERSON REID
Roy Cooper, Attorney General, by Isaac T. Avery, III, Special
Deputy Attorney General, and Patricia A. Duffy, Assistant
Attorney General, for the State.
Tharrington Smith, L.L.P., by F. Hill Allen for defendant-
appellant.
THOMAS, Judge.
Defendant, Robert Anderson Reid, appeals from a conviction of
impaired driving. He argues that the revocation of his commercial
driver's license for a thirty-day period prior to trial and his
disqualification from obtaining a commercial limited driver's
privilege during that time resulted in double jeopardy.
The State's evidence tended to show the following: On 23 April
1999 at approximately 3:20 a.m., Trooper Donald Pate (Pate) of the
North Carolina Highway Patrol observed a Nissan automobile
traveling at a high rate of speed.
After clocking the vehicle at 90 m.p.h., Pate pulled it over,
and found defendant to be the operator. Defendant's eyes werebloodshot and glassy and Pate smelled a strong odor of alcohol
coming from him. Pate then asked defendant to perform field
sobriety tests. Based in part on defendant's performance, Pate
arrested him for driving while impaired (DWI).
Pate drove defendant to the City/County Bureau of
Identification for an Intoxilyzor 5000 test. Defendant's alcohol
concentration was 0.10.
At the close of the State's evidence, defendant's motions to
dismiss due to insufficiency of the evidence and on double jeopardy
grounds were denied. The basis for defendant's double jeopardy
argument was what occurred regarding his commercial driver's
license after being charged with DWI. That license, as well as his
personal driver's license, was revoked for a thirty-day period.
Defendant then filed petitions for personal and commercial limited
driving privileges. He received the personal limited driving
privilege. His request for a commercial limited driving privilege
was refused, however, based on a lack of statutory authority.
After the thirty-day period, defendant's commercial driving
privilege was reinstated upon the payment of a fifty-dollar
restoration fee to the North Carolina Department of Motor Vehicles.
Defendant did not testify and did not offer evidence. The
jury returned a guilty verdict and the trial court, determining
defendant was a Level V offender, entered a suspended sentence.
By defendant's first and second assignments of error, he
argues the thirty-day revocation of his commercial driver's license
without the availability of a limited commercial license is“punishment.” The subsequent prosecution for DWI, he contends,
violates the federal double jeopardy clause of the Fifth Amendment
to the U.S. Constitution and the North Carolina Law of the Land
clause. We disagree.
The double jeopardy clause protects against a second
prosecution for the same offense after an acquittal or conviction
and protects against multiple punishments for the same offense.
U.S. Const. Amend. 5. It is applicable to the states based on the
Fourteenth Amendment's due process clause. The Law of the Land
clause of the North Carolina Constitution incorporates similar
protections.
No person shall be taken, imprisoned, or
disseized of his freehold, liberties, or
privileges, or outlawed, or exiled, or in any
manner deprived of his life, liberty, or
property, but by the law of the land. No
person shall be denied equal protection of the
laws; nor shall any person be subjected to
discrimination by the State because of race,
color, religion, or national origin.
N.C. Const. Art. I, § 19. Our Supreme Court has noted that “[i]t
is a fundamental and sacred principle of the common law, deeply
imbedded in our criminal jurisprudence, that no person can be twice
put in jeopardy of life or limb for the same offense . . . . While
the principle is not stated in express terms in the North Carolina
Constitution, it has been regarded as an integral part of the 'law
of the land' within the meaning of [this section].” State v.
Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954).
The General Statutes provide, in pertinent part:
(b) Revocations for Persons Who RefuseChemical Analyses or Who Are Charged With
Certain Implied-Consent Offenses. --A person's
driver's license is subject to revocation
under this section 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 motor vehicle; or
d. Has any alcohol concentration at
any relevant time after the driving and the
person is under 21 years of age.
N.C. Gen. Stat. § 20-16.5(b) (1999). However, in State v. Oliver,
343 N.C. 202, 470 S.E.2d 16 (1996), our Supreme Court held that the
then ten-day revocation under section 20-16.5 and restoration fee
constituted a remedial highway safety measure rather than
punishment. The Oliver court further 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.
In Hudson v. United States, 522 U.S. 93, 99, 139 L. Ed. 2d
450, 458 (1997), the U.S. Supreme Court utilized factors set forth
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644(1963), to determine whether a civil penalty was punitive. The
factors include: (1) whether the sanction involves an affirmative
disability or restraint; (2) whether it has been historically
regarded as punishment; (3) whether the sanction comes into play
only upon a finding of scienter; (4) whether the operation of the
sanction will promote the traditional aims of punishment,
retribution and deterrence; (5) whether the behavior to which the
sanction applies is already a crime; (6) whether an alternative
purpose to which the sanction may be rationally connected is
assignable to it; and (7) whether the sanction appears excessive in
relation to the alternative purpose assigned. Id.
In State v. Evans, ___ N.C. App. ___, 550 S.E.2d 853 (2001),
this Court utilized these factors to conclude that section 20-16.5
is not punitive. The Evans court stated that “the function and
intent of [section 20-16.5] is to remove from our highways drivers
who either cannot or will not operate a motor vehicle safely and
soberly. The purpose of [the] license revocation [is] to prevent
unsafe and unfit drivers from operating vehicles and endangering
the citizens of North Carolina.”
Defendant contends his case is distinguishable, however, in
that it was his commercial license that was affected, which denied
his “very right to earn a livelihood for that 30-day period.” He
asserts that his commercial driving privilege was wrongfully
affected since he was operating a non-commercial vehicle at the
time of the offense. However, the U.S. Supreme Court, in Seling v.Young, 531 U.S. 250, 267, 148 L. Ed. 2d 734, 737 (2001), held that
“[a]n Act found to be civil cannot be deemed punitive 'as applied'
to a single individual in violation of the Double Jeopardy . . .
clause” because the impact on a single defendant is irrelevant in
a double jeopardy analysis. In total, the Evans analysis as to the
seven factors is applicable here.
Defendant also argues that the U.S. Supreme Court holding in
Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 128
L. Ed. 2d 767 (1994), serves to bar his trial because of the
license revocation. Even if we had held the revocation here to be
punishment, which we do not, whether that would have automatically
implicated Kurth Ranch is not settled since the ostensibly civil
proceeding came prior to the criminal proceeding. The U.S. Supreme
Court, in Kurth Ranch “specifically noted that 'the statute here
does not raise the question whether an ostensibly civil proceeding
that is designed to inflict punishment may bar a subsequent
proceeding that is admittedly criminal in character.'” Vick v.
Williams, 233 F.3d 213, 218 (4th Cir., 2000), cert. den., ___ U.S.
___, 150 L. Ed. 2d, 754 (2001) (emphasis added). According to
Vick, the U.S. Supreme Court “specifically reserves the question of
whether that [civil] punishment would bar a subsequent criminal
proceeding.” Id.
The safety and remedial purposes of the statute are clear.
Regardless of the type of vehicle being driven at the time of theoffense, a driver unwilling or unable to conform to the motor
vehicle laws is a danger to other citizens on the road. Moreover,
we note defendant's Class A commercial driver's license enabled him
to operate any Class A motor vehicle. See N.C. Gen. Stat. § 20-
37.16(b)(1) (1999). The classes of motor vehicles are solely based
on the weight of the vehicle. Section 20-4.01 provides, in
pertinent part:
(2a) Class A Motor Vehicle.--A
combination of motor vehicles that meets
either of the following descriptions:
a. Has a combined GVWR of at least
26,001 pounds and includes as part of the
combination a towed unit that has a GVWR of at
least 10,001 pounds.
b. Has a combined GVWR of less than
26,001 pounds and includes as part of the
combination a towed unit that has a GVWR of at
least 10,001 pounds.
(2b) Class B Motor Vehicle.--Any of the
following:
a. A single motor vehicle that has a
GVWR of at least 26,001 pounds.
b. A combination of motor vehicles
that includes as part of the combination a
towing unit that has a GVWR of at least 26,001
pounds and a towed unit that has a GVWR
of less than 10,001 pounds.
(2c) Class C Motor Vehicle.--Any of the
following:
a. A single motor vehicle not
included in Class B.
b. A combination of motor vehicles
not included in Class A or Class B.
N.C. Gen. Stat. § 20-4.01(2a); (2b); and (2c) (1999). A Class A
commercial driving privilege encompasses some of the largest
vehicles on the road. Defendant stated that driving a larger
vehicle requires greater skill and that there are more stringent
requirements to get a commercial driver's license. See Art. 2C ofChapter 20 of the N.C. General Statutes. We thus believe the state
has a greater interest in the public's safety regarding commercial
drivers because there exists a greater risk of harm. A personal
driver's license has been held to be a privilege. See State v.
Evans, ___ N.C. App. ___, 550 S.E.2d 853 (2001); Eibergen v.
Killens, 124 N.C. App. 534, 477 S.E.2d 684 (1996). A commercial
driver's license is an extraordinary privilege which carries with
it additional responsibilities.
Driver's license revocations are civil, not criminal,
proceedings. See State v. Oliver, 343 N.C. 202, 470 S.E.2d 16
(1996); Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979).
Double jeopardy will attach only when a defendant is forced to
defend himself from multiple criminal punishments for one offense.
Accordingly, the revocation of defendant's commercial license
for thirty days accompanied by a disqualification for a limited
commercial driver's license was not akin to criminal punishment.
It was the exercise of reasonable regulatory authority designed for
an appropriate public purpose. Defendant's later conviction for
DWI did not constitute double jeopardy.
NO ERROR.
Judges WYNN and HUDSON concur.
*** Converted from WordPerfect ***