State v. EvansState v. Evans
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- Before:
- McGee
Scott Evans (defendant) was charged with driving while impaired (DWI) pursuant to
Defendant’s criminal DWI charge was called for trial on 1 July 1998 in Chatham County District Court before Judge Alonzo B. Coleman. The same day, defendant moved to dismiss the DWI charge, arguing that the 30-day revocation of his driver’s license was punishment. He contended that the subsequent criminal prosecution and punishment for driving while impaired under
The State’s appeal was heard on 21 September 1998 by Superior Court Judge Wade Barber. At the hearing, the State and de fendant agreed that eight pending DWI cases, all raising the same basic issue of double jeopardy, would be heard together and their evidence consolidated.
Judge Barber entered an order on 12 July 1999 reversing the district court’s order as to the four non-indigent DWI defendants and remanded those defendants to the district court for a criminal DWI trial. In so doing, the court concluded that criminal prosecution of the non-indigent DWI defendants after the revocation of their drivers’ licenses would not violate their double jeopardy rights. Judge Barber, however, affirmed the district court’s order to dismiss the DWI criminal charges as to the four indigent DWI defendants, including defendant in this case. The court concluded that the Double Jeopardy Clause of the United States Constitution barred criminal prosecution of indigent DWI defendants whose licenses had been civilly revoked for thirty days because “the effort and expense of obtaining a limited driving privilege were completely unmanageable.” The State appealed the 12 July 1999 order, pursuant to
On appeal, the State contends that the superior court committed reversible error by concluding that the 30-day revocation of defendant’s driver’s license pursuant to
The Double Jeopardy Clause prohibits “a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.”
Department of Revenue of Mont. v. Kurth Ranch,
511 U.S. 767, 128 L. Ed. 2d 767 (1994). “The Law of the Land Clause incorpo
rates similar protections under the North Carolina Constitution.”
State v. Oliver,
343 N.C. 202, 205, 470 S.E.2d 16, 18 (1996) (citing
In Hudson, the United States Supreme Court modified the standard for double jeopardy analysis. According to the Hudson Court, “the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, ‘in common parlance,’ be described as punishment. ” Id. at 98-99, 139 L. Ed. 2d at 458 (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 87 L. Ed. 443, 452 (1943)). Instead, “[t]he [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense.” Id. at 99, 139 L. Ed. 2d at 458 (citation omitted). The Court then advanced a two-part inquiry for determining whether a statutory scheme imposes punishment for double jeopardy purposes:
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Even in those cases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect” as to “transform] what was clearly intended as a civil remedy into a criminal penalty.”
In evaluating the second part of the analysis, the Hudson Court counseled in favor of courts applying the factors previously listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 660-61 (1963). Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459. These factors include:
(1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of sci-enter”-, (4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.”
Id. at 99-100, 139 L. Ed. 2d at 459. The Court cautioned in Hudson that no one factor is controlling. Id. at 101, 139 L. Ed. 2d at 460. In Seling v. Young, 531 U.S. 250, 262, 148 L. Ed. 2d 734, 746 (2001), the United States Supreme Court also stated that “the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect.”
Thus, pursuant to the two-part inquiry articulated in
Hudson,
we must begin by examining the purpose behind
(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 vehicle; or
d. Has any alcohol concentration at any relevant time after the driving and the person is under 21 years of age.
(1) At the time of the alleged offense the person held either a valid drivers license or a license that had been expired for less than one year;
(2) Does not have an unresolved pending charge involving impaired driving except the charge for which the license is currently revoked ... or additional convictions of an offense involving impaired driving since being charged for the violation [at issue];
(3) The person’s license has been revoked for at least 10 days if the revocation is for 30 days . . .; and
(4) The person has obtained a substance abuse assessment from a mental health facility and registers for and agrees to participate in any recommended training or treatment program.
In the case before us, defendant argues that although
In support of his contention, defendant presents as evidence a statement by then Governor James B. Hunt, Jr. that the 30-day revocation was introduced as a part of the State’s on-going efforts to “crack down on drunk drivers and let them know they’ll pay the price.” See “Gov. Hunt Announces Plans to Toughen Penalties for Drunk Drivers,” Press Release, State of North Carolina, Office of the Governor, 16 October 1996. Defendant asserts that this statement, as well as statements from the Governor’s Highway Safety Committee, prove that the extension of the 10-day revocation period was intended to be punitive.
When construing statutes, our courts should always give effect to the intent of the General Assembly. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). However,
[w]hile the cardinal principle of statutory construction is that the words of the statute must be given the meaning which will carry out the intent of the Legislature .... [testimony, even by members of the Legislature which adopted the statute, as to its purpose and the construction intended to be given by the Legislature to its terms, is not competent evidence upon which the court can make its determination as to the meaning of the statutory provision.
Milk Commission v. Food Stores,
270 N.C. 323, 332-33, 154 S.E.2d 548, 555 (1967). Thus, “[e]ven the commentaries printed with
In
Henry v. Edmisten,
315 N.C. 474, 340 S.E.2d 720 (1986) and
State v. Oliver,
343 N.C. 202, 470 S.E.2d 16 (1996), our Supreme Court interpreted the prior version of
In
Henry,
our Supreme Court clearly established that the original legislative intent of
Although one purpose of summary license revocation is to safeguard the public from an impaired driver on the particular occasion on which the driver is arrested, the revocation has a broader purpose. The statute authorizing revocation assumes implicitly that drivers who have driven impaired on one occasion pose an appreciable risk of repeating their conduct. We cannot say this assumption is so unreasonable as to prevent the state from summarily suspending a person’s driving privileges.
Id. The Court then concluded that “the summary revocation procedure of § 16.5 is not a punishment but a highway safety measure . . . the bill as finally enacted reflects an intent by the legislature for the revocation provision to be a remedial measure.” Id. at 495, 340 S.E.2d at 734.
Ten years later in
Oliver,
our Supreme Court again examined
[our Court] has long held that a driver’s license ‘is not a natural or unrestricted right, nor is it a contract or property right in the constitutional sense. It is a conditional privilege, and the General Assembly has full authority to prescribe the conditions upon which licenses may be issued and revoked. The ten-day driver’s license revocation . . . merely signifies the failure of the driver to adhere to the conditions imposed by the legislature on the driver’s license. As such, it is not punishment.
Id. at 210, 470 S.E.2d at 21 (citations omitted).
The only relevant difference between
We must next examine whether the effect of
The first
Kennedy
factor requires a review of “[w]hether the sanction involves an affirmative disability or restraint.”
Hudson,
522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). In this case, defendant argues that the 30-day driver’s license revocation and $50.00 revocation fee authorized by
In Hudson, the Court stated that an “affirmative disability or restraint” generally is some sanction “approaching the ‘infamous punishment’ of imprisonment.” Hudson, 522 U.S. at 104, 139 L. Ed. 2d at 462 (citations omitted). The Hudson Court concluded that the sanction at issue, indefinite prohibition from participating in the banking industry, did not involve an “affirmative disability or restraint.” Id. Likewise, in defendant’s case, a 30-day driver’s license revocation and $50.00 revocation fee cannot be said to “approach the ‘infamous punishment’ of imprisonment.” Id. (citation omitted).
The second
Kennedy
factor asks whether, from a historical perspective, the sanction has been viewed as punishment. Historically, punishment has taken the forms of incarceration and incapacitation. This form of punishment is available under
We agree with the State and defendant that the third
Kennedy
factor, a finding of
The fourth Kennedy factor asks whether the sanction promotes the “traditional aims of punishment — retribution and deterrence.” Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). The Supreme Court in Hudson noted, however, that “all civil penalties have some deterrent effect.” Id. at 102, 139 L. Ed. 2d at 461. “If a sanction must be ‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.” Id. Moreover, the Court continued, “the mere presence of a [deterrent quality] is insufficient to render a sanction criminal [because] deterrence ‘may serve civil, as well as criminal goals.’ ” Id. at 105, 139 L. Ed. 2d at 463 (quoting United States v. Ursery, 518 U.S. 267, 292, 135 L. Ed. 2d 549, 570 (1996)).
We acknowledge that
The fifth
Kennedy
factor asks “whether the behavior to which [the statute] applies is already a crime.”
Hudson,
522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). Violating the implied consent offense of driving with an alcohol concentration of 0.08 or more is a crime under
The final two factors under the
Kennedy
analysis require us to decide whether there is a remedial purpose behind
As we have stated,
Having examined
Reversed and remanded.
Judges WYNN and TIMMONS-GOODSON concur.