Raleigh criminal lawyer John McWilliam

Pre-Trial Driving

Pre-Trial Driving

Limited Driving Privilege Almost everyone charged with a DWI in North Carolina will immediately have his driver’s license taken and be subject to a thirty-day “civil” revocation of his privilege to drive. In most cases, a person charged with a DWI is entitled to a pre-trial limited driving privilege (ldp). But when the statute allows for the issuance of a pre trial ldp, it is in the judge’s discretion whether to issue it. However, a judge may not and will not issue a pre-trial ldp before the mandatory ten-day absolute ban on driving following the charge of DWI has run. So, the legislature gives the judge the discretion to make a decision that hurts a person accused of a crime (who remains, and is, innocent until and unless proven guilty) but not the discretion to make a decision that helps him. In order to be eligible for a pre-trial ldp, a person who statutorily qualifies for one must: Obtain a substance abuse assessment from a recognized agency Enroll in the agency’s recommended treatment Obtain a DL 123 insurance form Obtain a certified copy of his driving record In Wake County, the procedure to obtain a pre-trial ldp that should take one day, takes two. On the expiration of the ten-day period of non-operation, the petitioner for the ldp or his lawyer, must file the petition and serve it on the District Attorney. The next day, the petitioner or his lawyer must appear in court with the ldp and all the documentation establishing that the petitioner is truly eligible for the pre-trial ldp. Upon the judge’s signing and issuance of the ldp, the petitioner or his lawyer must pay the clerk the statutory fee for the clerk to release the ldp back to the petitioner or his lawyer. Yes, not only must you subject yourself to being treated like a guilty alcoholic, but it costs money to be able to keep driving when you’re still innocent of the crime you’ve been charged with. The Civil Revocation The 30-day suspension of your driver’s license that is imposed upon being charged with DWI is called a civil revocation. This innocuous-sounding name is anything but. The state manages to avoid having DWI’s dismissed on the basis of double jeopardy by calling the pre-trial thirty-day punishment that is the license revocation a “civil” revocation (it’s civil; not criminal; therefore not a punishment). The appellate courts have bought into this lie too; so, in North Carolina, everyone charged with a DWI whose license is taken for thirty days and then faces the second punishment associated with the DWI itself is not being punished twice… because the courts say so. Now would be an interesting time to look at some language from the Fifth Amendment to the United States Constitution: “…nor shall any person be subject for the same offense to be twice put in jeopardy…” Upon the expiration of the thirty day “civil” revocation, the accused may retrieve his license from the Clerk of Court having first paid the statutory fee. Yes, they punish you twice, call it something different, and make you pay for it. And all this from people who have sworn an oath to uphold the United States Constitution.  

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