NO. COA02-984
Appeal by defendant from judgment filed 14 March 2002 by Judge
A. Moses Massey in Guilford County Superior Court. Heard in the
Court of Appeals 4 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III and Assistant Attorney General
Patricia A. Duffy, for the State.
Neill A. Jennings, Jr. for defendant appellant.
BRYANT, Judge.
Robert Douglas Batten (defendant) appeals from a judgment
filed 14 March 2002 entered consistent with a jury verdict finding
him guilty of Driving While Impaired (DWI).
Defendant was charged with DWI on 13 December 1999.
Subsequently, defendant's North Carolina driver's license was
revoked for thirty days pursuant to N.C. Gen. Stat. § 20-16.5 by an
order dated 13 December 1999 because there was probable cause
defendant had an “alcohol concentration of 0.08 or more at any
relevant time after . . . driving.”
The matter of defendant's DWI charge was initially tried in
district court, where defendant moved to dismiss the charge againsthim on the basis that a prosecution for DWI following the
thirty-day suspension violated prohibitions against double
jeopardy. The district court denied the motion, and defendant was
found guilty as charged. Defendant appealed de novo to the
superior court, where he again moved to dismiss the charges against
him based upon double jeopardy violations.
_____________________________
The issue is whether the immediate thirty-day drivers license
revocation for persons charged with implied consent offenses under
N.C. Gen. Stat. § 20-16.5 bars subsequent prosecution for DWI and
other alcohol related offenses.
Specifically, defendant contends that such prosecution
violates the prohibition against double jeopardy. As noted in
State v. Newsome, --- N.C. App. ---, ---, --- S.E.2d ---, --- (Mar.
18, 2003) (No. COA02-792), and
State v. Little, --- N.C. App. ---,
---, --- S.E.2d ---, --- (Mar. 18, 2003) (No. COA02-957), two
opinions filed contemporaneously with the case
sub judice, this
issue has been previously addressed by this Court and decided
contrary to defendant's position.
See State v. Reid, 148 N.C. App.
548, 559 S.E.2d 561 (2002);
State v. Evans, 145 N.C. App. 324, 550
S.E.2d 853 (2001);
see also State v. Oliver, 343 N.C. 202, 470
S.E.2d 16 (1996) (holding that the ten-day drivers license
revocation for persons charged with implied consent offenses
pursuant to N.C. Gen. Stat. § 20-16.5 is a civil penalty, and,
therefore, subsequent prosecution for DWI does not result in a
double jeopardy violation). In light of existing authority, wedecline defendant's invitation to revisit this issue.
See In re
Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) (providing that one panel of this Court may not overrule the
decision of another panel of this Court). As previously held, the
principles of double jeopardy are not violated when a defendant's
license is revoked for thirty days under N.C. Gen. Stat. § 20-16.5
for an implied consent offense and the defendant is subsequently
prosecuted for DWI.
See Reid, 148 N.C. App. 548, 559 S.E.2d 561;
Evans, 145 N.C. App. 324, 550 S.E.2d 853;
see also Oliver, 343 N.C.
202, 470 S.E.2d 16. Thus, defendant's argument is overruled.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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