In re Sparks, No. 7429SC1010

No. 7429SC1010 | N.C. Ct. App. | Mar 5, 1975

CLARK, Judge.

The only issue to be decided on this appeal is whether the Indiana bond forfeiture within ten years of the present' offense is a conviction that would abrogate the discretion of a judge to grant a limited driving permit under G.S. 20-179 (b) (1). It should be noted that, under G.S. 20-24 (c), a bond forfeiture is equivalent to a conviction.

Prior to 1969, G.S. 20-179 only dealt with penalties for driving under the influence of intoxicating liquor or narcotic drugs. In 1969, the General Assembly in Chapter 1283 amended G.S. 20-179 with legislation entitled, “An act to allow judges TO ISSUE LIMITED DRIVING PERMITS TO PERSONS CONVICTED OF FIRST OFFENSES OF DRIVING WHILE UNDER THE INFLUENCE OF intoxicating liquor.” This amendment added the entire subsection (b) designating the existing paragraph subsection (a). In 1971, the General Assembly in Chapter 619, §§14 and 15 amended the section further adding, inter alia, the language “. . . or as appropriate” to the form judgment of subsection (b) (2) wherein the offense for which the permittee has been convicted is to be listed. Another pertinent amendment of the same year to this statute is found in Chapter 1133, which provides in substance that prior offenses occurring within ten years of the date of the present offense counted so that a conviction on a current offense would not be a “first conviction.”

In the case of In Re Oates, 18 N.C. App. 320, 196 S.E. 2d 596 (1973), this Court held that a prior out-of-state conviction for driving while intoxicated was a conviction to be counted under the mandatory revocation provisions of G.S. 20-19 (e). While that case only dealt with the provisions of that section, it is, nevertheless, relevant to the question in the present case in that G.S. 20-19 (e) is a penal provision allowing permanent revocation of a license whereas G.S. 20-179 (b) (1) is a license reinstatement provision. Insofar as this Court has already held that the clear legislative intent under a penal provision was to count prior out-of-state convictions, it becomes very difficult to discount them under a grace type provision. This is not to say that the legislative intent may have been different when it passed the grace provision, but it is to say that what was contemplated as a conviction under one section may equally be such under another. If it is the clear intent of the legislature to count out-of-state convictions in permanently depriving one of his license under G.S. 20-19 (e), it is logical to conclude that the legislature intended them to count for purposes of granting limited driving privileges under G.S. 20-179 (b) (1).

It should be noted that all of the amendments to G.S. 20-179 are specifically related to the offenses of driving under the influence. With this in mind and the fact that the only “driving under the influence” statutes in this State are enumerated in G.S. 20-138, 20-139 (a) and 20-139 (b), it is reasonable to assume that the legislative amendment in 1971 adding “or as appropriate” to the offenses to be listed in the form judgment of G.S. 20-179 (b) (2) was referring to out-of-state convictions. This carries through logically in that the language of G.S. 20-179 (b) (3) gives the resident judge authority to issue restrictive driving privileges “[u]pon conviction of such offense outside the jurisdiction of this State. . . .”

In view of the legislative intent as defined in the In Re Oates case, the legislative recognition of out-of-state convictions in other subparts of G.S. 20-179 (b), and the fundamental rule of construction that sections and acts in pari materia, and all parts thereof, should be construed together, it is our opinion that the judgment in the present case should be reversed and the action of the respondent in revoking the petitioner’s license be reinstated.

Reversed.

Chief Judge Brock and Judge Hedrick concur.