State v. Atwood, 219 S.E.2d 521

State v. Atwood

219 S.E.2d 521

N.C. Ct. App.

1975

Check Treatment

Lead Opinion

HEDRICK, Judge.

A vаlid conviction under G.S. 20-28 (a) for driving while one’s license is suspended requires proof of three (3) elements. The State must prove that the defendant (1) operated a motor vehicle, (2) on a public highway, (3) whilе her driver’s license was suspended. State v. Cook, 272 N.C. 728, 731, 158 S.E. 2d 820, 822 (1968) ; State v. Newborn, 11 N.C. App. 292, 181 S.E. 2d 214 (1971). It is to the sufficiency of the proof of the suspension that the defendant focuses her arguments. The defendant contends that for the jury to find there was a valid suspension, thе State must show that the defendant had an opportunity for a hearing before the effective date of the suspension and that the defendant had actual notice of the impending suspension and оf the right to a hearing. It is the defendant’s contention that minimum due process requires as much, and submits as error the court’s refusal to dismiss the case for lack of proof of these elements by the State.

The dеfendant also, assigns as error the court’s instructions to the jury that a suspension is effective when the Department of Motor Vehicles deposits the notice in the United States mail át least four days prior' to the effective date of the suspension in an envelope with postage prepaid addressed to the defendant at her address as shown by the records of the Department of Motor Vehiсles. The defendant argues that the court should have instructed the jury that a prior hearing and actual notice of the suspension and right to a prior hearing were necessary for the suspension to bе valid. In our opinion, defendant’s assignments of error are without merit.

G.S. 20-48 in pertinent part provides that:

“. . . notice [of suspension] shall be given-either by personal delivery thereof to the person to be so notified or by deposit in the United Stаtes mail of such notice in an envelope with postage prepaid, addressed to such person at *448his address as shown by the records of the Department [of Motor Vehicles]. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice.”

G.S. 20-16(d) in pertinent part provides that:

“Upon suspending the license of any person as hereinbefore in this section authorized, the Deрartment shall immediately notify the licensee in writing and upon his request shall afford him an ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍opportunity for a hearing, unless a preliminary hearing was held before his license was suspended, as early as praсtical within not to exceed 20 days after receipt of such request. . . .”

G.S. 20-25 provides, in pertinent part, that:

“Any person . . . whose license has been . . . suspended . . . except where each cancellation is mandatory under the provisions of the Article, shall have a right to file a petition within 30 days thereafter for a hearing in the matter in the superior court. . . .”

In State v. Teasley, 9 N.C. App. 477, 176 S.E. 2d 838 (1970), cert. denied 277 N.C. 459, 177 S.E. 2d 900 (1970), Chief Judge Mallard, speaking for this court at page 486, said :

“We hold that G.S. 20-48, which is the statute providing for the manner in which notice is to be given, is reasonably calculated to assure that notice will reach the intended party and afford him the opportunity of resisting or avoiding the proposed suspension, as well as to give him notification of the actual suspension of his operator’s license and driving privilege.”

Judge Mallard also said at page 487:

“ . . . that the provisions of G.S. 20-48, together with the provisions of G.S. 20-16 (d), relating to the right of reviеw, and the provisions of G.S. 20-25, relating to the right of appeal, satisfy the requirements of procedural due process.

The defendant contends that the foregoing holding in Teasley has been abrogated by the holding of the United States Supreme Court in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed. 2d 90 (1971), decided subsequent to our decision in Teasley. We do not agree.

*449The facts in Bell indicate that undеr Georgia’s motor vehicle safety responsibility statute, an uninsured motorist, if involved in an accident, is required to post security or be subject to having his operator’s license suspended. The petitioner was involved in an accident and did not post security, but at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an administrative hearing prior to suspension, the petitioner offered to show that he was not liable for the accident. Such evidence was refused as being irrelevant to the issue of compliance with the statute. The decision of the administrative hearing was upheld in the Georgia courts.

The United States Supreme Court granted certiorari and ruled that whether the entitlement of a license is denominated a “right” or a “privilege,” “ [s] uspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L.Ed. 2d 349, 89 S.Ct. 1820 (1969) ; Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed. 2d 287, 90 S.Ct. 1011 (1970)” Id. at 539. In reversing the Georgia courts, the Supreme Court went on to say that the fault or possible liability of the defendant for thе accident was an important element of the State’s right to suspend the operator’s license, and a refusal to hear evidence on that subject was a denial of due process.

As the defendant contends, this was an important case in defining the rights of a license holder, and the holding does require notice and an opportunity to be heard on the issue of liability, but we have examined that case and can find nothing in it concerning the manner in which notice must be given. We find nothing in Bell which in any way abrogates the holding in Teasley.

Addressing ourselves to defendant’s contention that Bell requires that the defendant be afforded a meaningful hearing before the Department of Motor Vehicles would have the authority to suspend the driving privileges of one holding a valid operator’s license, we are of the opinion that in the present case, under North Carolina’s statutes, the defendant was afforded such a meaningful hearing. She was actually ' chargеd and convicted of the speeding offenses which ultimately resulted in the administrative action of the Department in suspending her license. When the defendant’s guilt or innocence in the speeding casеs was adjudicated, the question of probable *450liability discussed in Bell was determined. At that point, a hearing before the Department of Motor Vehicles could have reviewed nothing more than the record of the dеfendant’s speeding convictions. If further hearing is required ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to satisfy the due process requirements of the Fourteenth Amendment, we are of the opinion that G.S. 20-16 (d) meets these requirements by affording the defendant аn opportunity for such a hearing. State v. Teasley, supra, makes it clear that giving notice to the defendant as provided in G.S. 20-48 satisfies the requirements of due process with respect to the notice of an opportunity fоr a hearing as well as of the suspension itself.

We hold the defendant had a fair trial, free from prejudicial error.

No error.

Judge Britt concurs. Judge Martin dissents.

Dissenting Opinion

Judge Martin

dissenting:

The minimum requirements of procedural due process with respect to notice аnd hearing were not met in the present case. The U. S. Supreme Court has often dealt with the question of what constitutes “the right to be heard” within the meaning of procedural due process. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1949), the Court said that thе “. . . right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” In the context of this case, the question is whether the suspension of defendant’s driver’s license without reasonable notice and without a prior hearing violates procedural due process.

This Court held in State v. Teasley, 9 N.C. App. 477, 176 S.E. 2d 838 (1970), cert. denied 277 N.C. 459, 177 S.E. 2d 900 (1970), that G.S. 20-48 was reasonably calculated to assume that notice will reach the intended party and afford him the opportunity of resisting or avoiding the proposed suspension. The Court further said that “[w]hen the Department complied with the procedure set forth in the statute as to notice of suspension of the operator’s license and driving privilege, such *451compliance constituted constructive notice to dеfendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that his license had been suspended.”

However, in Carson v. Godwin, 269 N.C. 744, 153 S.E. 2d 473 (1967), our Supreme Court expressed dissatisfaction with the use of regular mail as a means of notification of Departmental actions with reference to driver’s licenses. The Court did not mention G.S. 20-48, nor decide whether notification by regular mail would be considered sufficient compliance with the requirements of due process. The Court noted that:

“[a]n open letter to a former address may or may not be delivered, especially if there is a change of address. If the mails are to be employed for the transmission of notice, it would seem that a registered letter or a return receipt showing delivery would be a more complete compliance with the requirements of notice — essential of due process.”

In State v. Hughes, 6 N.C. App. 287, 170 S.E. 2d 78 (1969), (a case decided before Teasley), this Court said:

. : G.S. 20-20 provides that whenever any vehicle operator’s license is suspended under the terms of Chapter 20, ‘the licensee shall surrender to the Department all vehicle operator’s licenses and duplicates thereof issued to him by ■the Department which are in his possession.’ It is difficult to see how the licensee could be called upon to surrender his license because it had been suspended unless he is given notice of the suspension. Further, G.S. 20-25 provides that any person whose license has been suspended shall have a right to file a petition within 30 days thereafter for a hearing on the matter in the superior court. Again, the right to court review of the Department’s action in suspending a license would be futile if the licensee received no notification that the license had been suspended. . . .”

Even in the “light” of the Teasley decision, the “constructivе” notice to defendant is not sufficient to meet the minimum requirements of procedural due process in this case.

The evidence here indicates that the defendant did not receive the notice and that the Department of Motor Vehicles was on notice of that fact. Had defendant received the mailed notice, she would have had the opportunity of resisting or avoiding the proposed suspension as well as refraining from the commission of a criminal offense and subsequent arrest therefor.

*452In this case, G.S. 20-48 can hardly be described as a statute reasonably calculated to assure that notice will reach the intended party and afford her the opportunity of resisting or avoiding the proposed suspension as well as to give her notification of the actual ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍suspension of her operator’s license and driving privilege. It is my opinion that procedural due process requires as a minimum a manner of notification which will assure that notice will reach the intended party so that he may have the right to be heard.

Defendant’s motion for dismissal should have been allowed.