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It is no secret that an arrest for driving while impaired in North Carolina can have serious consequences for the driver accused of drunk driving. When the holder of a commercial driver’s license is arrested for DWI, the issue can have significant impact on the driver’s livelihood. However, the North Carolina Court of Appeals recently ruled that a one-year revocation of a CDL following a DWI arrest is sufficiently punitive to bar a later prosecution in criminal court on DWI charges.

On the Fourth of July in 2010, a truck driver was arrested for DWI while driving a non-commercial vehicle in Duplin County, North Carolina. Following that arrest, a Duplin County Magistrate seized the trucker’s CDL and revoked the commercial license for 30 days under North Carolina law.

The driver reportedly did not challenge that revocation order within the 10 day time frame to contest the revocation. Slightly more than two weeks later, the man received notice from the state that his CDL was disqualified for one year under North Carolina law.

Generally, courts have construed such license revocations as civil in nature. By August, the man had paid the civil revocation fees and retrieved his CDL, but he was prohibited from lawfully driving a commercial vehicle until the end of the CDL disqualification, which was one year after the DWI arrest on July 4, 2011. The man was transferred to a different job during the summer of 2010, but eventually lost that job in a staffing cut.

The man later challenged his DWI charges in criminal court, including a DWI defense argument that the CDL revocation of one year bars a later prosecution for DWI in criminal Court. In the next post, this blog will continue discussing how the courts have handled the Double Jeopardy argument.

Sources:

• Jacksonville Daily News, “Court: Prosecuting truck drivers who lose CDL for DWI is double jeopardy,” Lindell Kay, Feb. 24, 2013
• North Carolina Court of Appeals, “State v. McKenzie, No. COA12-436, Jan. 15, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

In the last post, this blog began discussing a recent ruling in the North Carolina Court of Appeals, which found that a prosecution for DWI following a one-year commercial driver’s license revocation under North Carolina law is barred by the Double Jeopardy clause of the Constitution.

In late August 2011, the man sought to have the criminal DWI charges dismissed. One of his criminal DWI defense arguments was that the CDL revocation was sufficiently punitive to be a criminal punishment, and therefore barred prosecution of the DWI charges under the Double Jeopardy Clause of the Constitution (the man raised a separate argument, which was not decided in the appellate court ruling).

The Duplin County District Court agreed and dismissed the DWI charges. Prosecutors appealed to Superior Court. There, the DWI charges were reinstated. The man took the issues to the Court of Appeals.

In January, a three judge appellate panel reversed the Superior Court ruling, finding that the one-year license revocation was sufficiently criminal in nature to bar the state from pursuing the DWI charges in criminal court. The appellate panel recognized that shorter license revocations have generally been deemed civil in nature, and therefore do not act to bar a criminal prosecution under the Constitution. However, the length of the revocation-one year-is lengthy enough to constitute a criminal punishment.

Prosecutors reportedly are planning to seek a stay of the appellate ruling. The ruling was a split decision, with two judges ruling in favor of the criminal defense argument and one judge dissenting. The ruling is expected to be considered in the North Carolina Supreme Court.

Sources:

• Jacksonville Daily News, “Court: Prosecuting truck drivers who lose CDL for DWI is double jeopardy,” Lindell Kay, Feb. 24, 2013
• North Carolina Court of Appeals, “State v. McKenzie, No. COA12-436, Jan. 15, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A redshirt freshman quarterback for the South Carolina Gamecocks was arrested in Late June for underage drinking and driving in North Carolina. The college football program nearly immediately suspended Tanner McEvoy from activities. The suspension was automatic under a USC policy. Now Coach Steve Spurrier has lifted the suspension of the football player.

Coach Spurrier says that North Carolina’s law for underage drinking and driving was not a sufficient reason to suspend the football player. Spurrier lifted McEvoy’s suspension less than a week after the North Carolina underage DWI and speeding arrest.

Spurrier apparently recognized that North Carolina’s strict underage drinking and driving law has a zero tolerance for alcohol for driver’s under the age of 21, That is, any evidence of alcohol consumption, in any quantity, can be sufficient for law enforcement to bring underage DWI accusations in North Carolina.

The football player was arrested June 29 in Mecklenburg County for speeding and underage drinking and driving. Few details about the incident have been printed in the media. The football player was released on 0 bond shortly after his arrest.

McEvoy’s arrest came as players were gearing up for the start of fall practice. The quarterback did not play last year as a redshirt. He is currently listed as a fourth string quarterback with the Gamecocks. He will compete this year with two other players to back up starting quarterback Connor Shaw.

Students can often face consequences that fall outside the criminal justice system after receiving a ticket for underage drinking, or an arrest involving allegations of drunk driving. North Carolina law sets a zero tolerance level for alcohol for drivers under the age of 21. Many teens are surprised to learn that all charges filed against anyone 16 or older are filed in adult court. That means a conviction is placed on the defendant’s permanent adult record.

Sources:

• Atlanta Journal Constitution, “Spurrier lifts QB’s suspension after a few days,” Joel Provano, Aug. 6, 2012
• Midlands Connection, “Gamecocks backup QB McEvoy suspended after arrest,” July 31, 2012

• Our firm handles criminal defense, including in the areas of underage DUI and alcohol offenses in the Pitt County area. For more information, please visit the student offenses page.

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .09%, the officer confiscated your driver’s license and gave you a a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about the Constitution and due process: Can they suspend my license for DUI before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.

Viewed another way, the officer in a DUI case is cop, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!

So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the separate crime of driving under the influence of alcohol). They justified this by saying that a license was a "privilege", not a "right" — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue suspending licenses on the spot, but to then give the driver a short-term (30 days in California) temporary operating permit during which he can request an administrative hearing from the DMV. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.)

MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no funds.  Do these APS hearings in DUI cases provide due process?

In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate.

So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without any legal education, can object to the driver’s evidence — and then sustain his own objection!  He can deny the driver’s attorney’s request a week before the hearing for a delay to subpoena a witness, then grant himself a delay in the middle of the hearing.  Well, you get the picture…

Not too surprisingly, the DMV wins about 95% of these DUI hearings.

That’s called "due process" in a drunk driving case.
 

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