*1 IN THE COURT. SUPREME COMR. OE MOTOR VEHICLES. V. SCHEIDT, v. EDWARD ROBERT ALEXANDER WINESETT Commissioner of Motor Vehicles North Carolina. 1954.) (Filed January, 1. Automobiles 34b—§ Department suspend Vehicles has exclusive or revoke a license vehicle. 2. Same— Department suspends of Motor Vehicles revokes a Where the driver’s 20-16, Department notify license under the licensee, of G.S. must hearing novo, upon request afford him a de which is right prescribed by statute, Department appeal as and where elects may proceed not contend that the licensee has no statute of, plea to, appeal of nolo contendere because of requiring revocation of license. suspen- 3. is insufficient Same —Plea sion driver’s license in under G.S. 20-16. plea charge in a to a Plaintiff local court entered and the clerk sent the record to the Commissioner Motor Vehicles. The that court proceed in of Motor elected to accordance with license, granted hearing, the licensee a denied his returned, request showing basing solely upon action -that his license be its of nolo contendere to the licensee had entered driving. hearing forum, in another and the of drunken Held: The was an admission of be used licensee as nolo contendere could not “satisfactory guilt insufficient, standing alone, evi- to constitute Department’s guilt charge, refusal and the dence” of defendant’s return the license error. Criminal Law 17c— 4. § guilt defendant’s nolo contendere establishes While purpose particular prosecution, in that such cannot proceeding, other criminal as an admission of considered civil. Same— 5. right, but is A as a matter of nolo contendere cannot prosecuting court, pleadable only by the court and the both leave attorney accept may due adminis- in cases decline where might justice improperly affected. tration of Law 62f— 34b: Criminal § Automobiles § given the exclusive of Motor Vehicles While the court, license, driver’s either to guilty or revoke a make the surrender defendant’s driver’s penalty prison is sus- a condition pended. concurring. J., TERM, N. O.] OE
WlNERETT MOTOR VEHICLES. SCHELDT, *2 Bone, J., by respondent from October from 12, 1953, Appeal WASH- INGTON. Affirmed. This was a civil 20-16 to G-.S. review an order tbe Commissioner Motor for suspending year operator’s one tbe license of petitioner. tbe
Tbe petitioner filed bis in accord with petition tbe tbe statute before Judge Bone, resident of .tbe Second Judicial District, setting forth tbe : following material facts
Tbe is a petitioner A Washington County. motor vehicle operator’s license was duly issued tbe Commissioner of Motor Vehicles and this license has expired. On .the June, peti- tioner was in tbe Trial arraigned Justice Court of Pasquotank County charged with a motor operating vehicle while under influence of tbe intoxicating liquor and petitioner entered of nolo plea was accepted prosecuting tbe officer tbe court tbe court. tbe Following rendition therein clerk of tbe that sent a record thereof to Commissioner of Motor Vehicles which record showed that petitioner bad contendere. re- pleaded nolo Thereafter tbe spondent served notice on petitioner bis motor vehicle that bad for been one tbe that tbe year, showing notice cause of suspension was under G.S. 20-16 for that tbe bad petitioner “committed for which mandatory required upon offense revocation license is conviction.”
Tbe respondent Commissioner of Motor Vehicles exercised bis author- in tbe ity premises upon tbe record that bad petitioner entered plea of nolo petitioner respondent Thereafter filed request bearing, for which was and at said subsequently granted, bearing tbe only before tbe officer was record that bearing petitioner evidence tbe bad entered nolo contendere in tbe Trial Justice Court of Pasquo- tank County. objected against him, Petitioner to said record used being but bearing tbe officer bis tbe objection overruled concluded that record afforded that bad committed an petitioner for offense license was required conviction, and denied that bis license be petitioner’s request returned. Petitioner tbe action was erroneous and alleged respondent without authority of law. respondent filed answer in which admitted tbe facts but alleged
maintained that bis action in tbe was lawful and premises proper, that petitioner’s tbe record of of nolo contendere to tbe operating while under tbe influence vehicle petitioner bad committed satisfactory evidence charged. IN THE SUPREME COURT.
Wine,sett op Come, Sci-ieidt, Motor Vehicles. Bone found the Judge facts to be substantially alleged and “all of respondent actions were taken and based solely upon showing contendere as herein set out.” it was Thereupon adjudged the action respondent suspend- ing petitioner’s operator’s license and denying request return thereof law, petitioner was entitled return his license.
Respondent excepted and appealed. &
Bailey Bailey petitioner, appellee. Jr., McMullan Attorney-General Behrends, and Samuel Member of Staff, respondent, appellant. *3 J. The of appeal C. the of Commissioner Motor pre- Yehicles Devin, for
sents decision the question the record that the petitioner a local court in had Pasquotank County of under charge driving motor vehicle while of the the influence intoxicating liquor was alone satisfactory hearing evidence before Commissioner under and the G.S. authorized the Commissioner to .suspend his driver’s license and to his for deny its return. of regulating operation statutes the motor vehicles on high ways Department created the of Motor and gave depart this ment the exclusive revoke driver’s for license Warren, out causes set in the statutes. 879. 20-16 of
Section the General Statutes that the of provides Department Motor Vehicles “shall have of suspend the any oper- ator or preliminary hearing upon chauffeur its showing by records licensee . . . has com- that for required mitted revocation of license is mandatory conviction.” upon of this it that
By (c) (G.S. 20-16) provided subsection section suspending as authorized this any person section, afford licensee, request shall and shall department notify him authorized hearing. Upon hearing duly agent evidence, administer and hear department may oaths, subpoenas issue of this suspension. rescind extend the order The effect under driving all and revocations licenses suspensions subsection that discretion of the are 20-16), department, this section in the (G.S. made re Wright, reviewable method In prescribed. de novo. In Wright, under this section is hearing
S.E. 2d 696. re (b) in subsection provides Section 20-24 Statutes General of laws in violation of offenses committed every having jurisdiction TERM, N. O.] OF MOTOR YEI-IICLES. forward
relating highways to the motor vehicles shall operation thereunder. any person the conviction 20-17 of the Statutes, Section General is codified under the head- revocation of license ing “Mandatory by Department,” provides of Motor Yehicles “shall forthwith revoke the license or chauffeur a record of such or chauf- operator upon receiving influ- driving feur’s conviction for . . . motor vehicle while under or a drug.” ence narcotic
G.S. 20-25 provides right appeal to the courts cases where denied, license has been where such can- “except revoked, under cellation is mandatory article,” prescribes for the machinery appeal by filing petition exercise hearing judge Court before Superior jurisdiction the court or District, vested hear and determine the question.
Thus would prescribed by seem of conviction vehicle while consequence is not under G.S. reviewable Wright, supra. in this record that But, expressly appears respond- from the case, him and that the record before showed proceeded ent of nolo contendere to the had entered a the petitioner’s was also admitted County Court. Pasquotank on the hearing respondent for a and that request hearing granted Court furnished acted on the record *4 petitioner’s plea. denied in the respondent pro- ruling Bone was Judge opinion the of nolo contendere in on of a him, showing based the ceeding before erroneous, judg- and entered Trial was County, the Court Pasquotank accordingly. ment
The the case here review. respondent’s appeal brings had quoted department authority under the the Unquestionably statute a motor vehicle license to suspend petitioner’s to satisfactory or its record hearing upon showing by other preliminary with which he was had convicted evidence that he been offense 20-16 1. The department, Court. G.S. (a) in the charged statute, in accordance upon notice, however, proceeded in Trial Court, petitioner’s in view the record of to his District Petition granted hearing. hearing. on that This ruling from an
in nature of an appeal adverse fact had in he proceeding this raised the question Pasquotank County action in nolo contendere in criminal pleaded record which was agreed him. We observe against could be used 7—239 IN THE SUPEEME COUET. OE MOTOR VEHICLES. SCIIEIDT,
to tbe State denominates tbis proceeding as a “civil action.” Certainly different, awas in proceeding another forum. rule in established The jurisdiction this is that a contendere does not de estop the fendant to his deny a civil action based on the facts. S. v. Burnett, 174 473. Nor 796, N.C. can this be used him as an admission in an action of a civil or as an action, nature admission other criminal action. 196, N.C. Stiers, In re N.C. 167 S.E. Hence it would seem petitioner’s objection to the use criminal case should been Pasquotank County sustained, conclusion based thereon was without foun respondent’s legal dation. it is
However, urged by respondent that under the statutes G.S. 20-16 and 20-17 the offense an the highway automobile is one “for manda which tory revocation and that required upon conviction,” order of 20-25 review the Commissioner under G.S. cases where expressly mandatory upon excludes revocation is conviction. In not such case the action Commissioner is reviewable under G.S. In re supra. Wright, proceedings states for a In rehearing under G.S. review. provides a confession equivalent conviction . S.E. 382 guilt. The statute G.S. declares that depártment an must be upon showing by based revoke the record evidence that has committed the licensee revocation of requires mandatory phrase “satisfactory license. statute uses the evidence.” Satisfac- is such as a mind tory might accept adequate reasonable It which is equivalent evidence, conclusion. sufficient support adequate justify defined “to such evidence as in amount is the court conclusion in of which it adduced.” jury adopting 32 C.J.S. 1043. of nolo contendere to a criminal is one indictment the courts of this State. “I long recognized by
which has been means Dictionary; By will not contest it.” Black’s Law C.J.S. “I do not wish to contend with State.” S. v. says merely, defendant 2d 695. accepted by prosecution 77 S.E. When subjects Court it ends case approved by the defendant *5 plea court as if had been confessed. judgment But far court is in that court concerned, has double So as the implication. as conviction judgment upon and in it authorizes particular case, 2d 241, 238 N.C. 77 S.E. verdict or S. plea guilt. v. TEEM, 195 N. C.] yEI-HOEE'S. OE OOMK. MOTOK far so as defendant is be concerned, tbe is at liberty pro- civil and ceedings, to assert bis criminal, innocence, and bis not plea may Stiers, as an admission be considered In re guilt. supra,; S. v.
supra. So it would seem to be tbe established rule more requires than tbe record of a nolo contendere to constitute conviction all far respects so as pleader is tbe concerned.
In this connection we think it proper to call attention to tbe fact that
it is not
required
tbe solicitor or other
or tbe
prosecuting officer,
Trial
Court, to
tbe
accept
proffered plea
nolo
Tbe
cannot
contendere.
be entered
of right
matter
but is pleadable
as
leave of tbe
only by
court.
S. v.
238
McIntyre,
305,
N.C.
Tbe decisions In re reasoning upon tbe Stiers S. v. Thomas were made to rest would seem to be question decisive tbe effect of an accepted nolo
In tbe Stiers case defendant, attorney tbe an at nolo con- law, pleaded tendere to an indictment charging embezzlement. Under tbe statutes then in force disbarment proceedings predicated conviction for felony instituted. But this Court held that tbe fact that be bad pleaded contendere could not be used him in a disbarment on proceeding predicated Court held that felony. Tbe not contendere does amount to a conviction confession court. “Tbe mere introduction of a certified open copy tbe indict- thereon, ment, based an bis And deprive attorney
sufficient license.” Thomas case rule was other criminal tbe extended to embrace actions as well as civil and it proceedings based was held tbe could not facts, guilt. another construed as admission presented here has been question considered this Court numerous cases and tbe decisions tend to tbe ruling Burnett, Oxendine, ; 435 below. S. v. N.C. S. v. 174 N.C. 796, S.E. 473; 382; 167 S.E. v. 48, 416, S. N.C. 475; 2d Ayers, 607; 17 S.E. S. v. N.C. S. v. Beasley, Stansbury, S.E. 2d *6 IN THE SUPREME COURT. V. MOTOR COME. OE VEHICLES. SCIIEIDT, Jamieson, 232 N.C. 185; 731, 62 2d 52; Horne, S.E. v. S. S. v. S.E. 2d S. v. 665; N.C. 196, 525; 72 S.E. 2d v.S. 695: McIntyre, A.L.R. 280. rules laid by down this Court in the cases cited have been discussed with effect of reference to the nolo in subsequent contendere in proceeding a different forum. cases do These not restrict of the in which the to render accepted any proper judgment in the same case. If suspension revocation of the pleader’s right operate vehicle on motor highway part judgment in the case in which the was tendered the defendant would no have cause complaint. statutes have now placed this authority in exclusively Vehicles, though surrender of driver’s might by court made condition, agreed by defendant, prison or other penalty suspended, guilty
The record of a nolo contendere criminal action Pasquotank Court was not competent proceeding 20-16 anas nor admission of should it guilt, be held constitute sufficient evi- dence to sustain ruling Hence think the respondent. re- we spondent was in denying petitioner’s plea. error efforts discourage Commissioner Motor Vehicles to violations of statutes regulating the motor on the revoca- operation highways by vehicles tion of drivers’ licenses cases authorized are to be by statutes commended. a motor vehicle one operation highway a menace to most constitutes public highways. circumspect However, user highway operator granted by motor vehicle on the a licensed right except not be as authorized State, deprived one should of this and in with accord by statute, prescribed procedure, accordance established law. rules For court below has properly the reasons stated we conclude that the of an accepted plea rule effect interpreted the considered in connection with G.S. when rendered must be
Affirmed. scholarly opinion I concur written concurring: J., Justice, so long has served the State our who beloved and illustrious Chief I of all our people. and so satisfaction ably the admiration known him all life. my contendere cannot agree
I with the statement such a forum, and that in a different used in a subsequent N. TEEM, 0.]
"WlNESETT OF MOTOR
COME.
VEHICLES.
competent
this proceeding under
as an admis
sion
nor
guilt,
should it be held to sustain the
ruling
respondent.
*7
of
However, plea
nolo contendere “is
to a
equivalent
plea of
guilty
so
far as
gives
the court tbe power
punish.
seems
be universally
held that when the plea is
accepted by
court,
imposed upon
a plea
guilty.”
G.S. 20-24, subsection (a), provides that whenever any person is con- victed any offense which this article makes mandatory revoca- tion license such person by Yehicles, court which such conviction is had require shall the surrender to it of the license then held by person convicted, so and the court shall forward same together with record of such conviction to the De- partment.
G.S. is captioned “Mandatory Eevocation License by Department,” states that the Department shall forthwith revoke the of a person of a upon receipt license record of such person’s conviction, when such conviction has final, become driving motor vehicle under the influence of intoxicating liquor.
All the agree authorities that when a ac- cepted court, sentence is as imposed guilty by court accepting plea. Mandatory revocation license is part punishment automobile while under the influence of intoxi- cating liquor. When the the de- County accepted fendant’s subsection (a), required up take and to together forward same with a record of Department. Upon of such receipt record by Department, requires mandatory revocation of the defendant’s license. Such
Department seems me to much the of a ministerial performance be as duty petitioner’s case Clerk of the Pasquotank County, Court in Pasquotank County court in the entering in the Minutes of that I case, case Court. think it is the same the same proceeding, the forum.
Therefore, my it is the now to opinion, duty revoke the petitioner’s 20-17; license under G.S. and under said statute to revoke the of all persons licenses who of nolo con- pleas tendere to a driving an automobile while under the intoxicating liquor, upon of a from a court in the State receipt showing such a plea was entered.