What I’m about to rant about has to do with license revocations upon the accusation of DWI and whether the subsequent prosecution of the DWI constitutes a violation of the defendant’s right against double jeopardy (what a mouthful).
A bit of law. Almost everyone charged with a DWI in North Carolina will have his license taken from him for thirty days. The law used to be that this pre-trial (or post charge) revocation was only ten days. So the question is, and has been: Is the initial license revocation and the subsequent prosecution for the DWI double jeopardy? Oh, and they call it a “civil revocation.” That’s civil, not criminal.
A bit of history. In 1996, when the civil revocation was ten days, in the case of State v. Oliver, the defendant argued that the civil revocation of his driver’s license and the subsequent DWI prosecution should be barred as a violation of his rights under the double jeopardy clause. Our Supreme Court held that it was not double jeopardy because the revocation was simply a civil remedial sanction.
Fair enough, I guess. Although I’ve suffered some three-day hangovers in my life, I’ve never heard of anyone needing ten days to sober up. But there you have it: a ten day revocation is ok.
Thereafter, in the case of State v. Evans, the Court of appeals was asked to decide if the newly (post Oliver)-modified statute that increased the ten-day pre-trial revocation to a 30-day revocation and the subsequent DWI prosecution was double jeopardy. And, after applying the same analysis that the Supreme Court had applied in Oliver, the Court of Appeals concluded that the beefed-up statute was still “neither punitive in purpose nor effect,” and still not double jeopardy. But the Court did issue this warning to the legislature:
“…although we find no punitive purpose on the face [of the statute], we are aware that, at some point , a further increase in the revocation period by the General assembly becomes excessive, even when considered in light of the well-established goals [of the statute]. Whether it is a further doubling or tripling of the revocation period , there is a point at which the length of time can no longer serve a legitimate remedial purpose, and the revocation provision could indeed violate the Double Jeopardy Clause.”
Good to see some recognition that depriving a person of his means of transportation (especially where we live; public transport is a joke) and probably creating a substantial threat to that person’s livelihood is punishment. What a shame that it takes such beatings over the head for the authorities to acknowledge it. So now consider this same issue for those people who really do make their living by driving. People who hold commercial drivers licenses. These poor bastards have their CDL’s revoked for a year if they’re accused of DWI, even if they weren’t driving a commercial vehicle, and even if they’re found not guilty of the DWI. That’s right: you’ve been a professional commercial driver for 20 years; you make a good living driving. One night you and the spouse go out to dinner, have some wine. Driving home, in your regular non-commercial car, you go through a checkpoint and get charged with DWI. Your commercial driver’s license is immediately revoked (they use the word disqualified – it’s the same thing) for a year. Seven months later, your DWI case is finally heard and you’re found not guilty. You’re still going to have to wait five more months before you can get that thing back that lets you do your job – your license. If my law license were taken from me for a week I’d be in trouble, a month? a year?
In October of 2012, the Court of Appeals was asked to decide whether Bobby McKenzie was subjected to double jeopardy when his CDL was revoked for a year because he was charged with DWI (in his non-commercial car) in July of 2010. The Court of Appeals, in State v. McKenzie, said he was. Finally! One of our appellate courts had the guts to recognize that revoking a person’s driver’s license is punishment — especially a person who actually drives for a living. Hooray.
Very short-lived hooray. The Court of Appeals’ decision was split 2 to 1; there was a dissent. The State appealed and the Supreme Court “stayed” the Court of Appeals’ decision while it decided the issue. This meant that the Court of Appeals’ decision had no effect on Bobby McKenzie or all those people who were in Bobby McKenzie’s situation — cdl holders with pending DWI’s who can’t work. I have to confess here that I was a stupid Pollyanna. I actually believed that the Supreme Court would go along with the Court of Appeals’ decision. I suppose I was ignoring what the “stay’ was so obviously telling me. My nay-saying colleagues, I felt, were being overly cynical ( a good defense mechanism).
So, about a year after the Court of Appeals’ decision, the Supreme Court finally made official what it so obviously knew it was going to do right off the proverbial bat: said the majority in the Court of Appeals got it wrong but the dissent got it right. Ah, Democracy. At least no one can accuse the judiciary of tyranny of the majority.
This is a disappointing result for many reasons. Obviously, it’s double jeopardy to take a person’s license to make a living and then to punish him again for the same thing that caused that license to be taken in the first place. And it’s terribly sad for Bobby McKenzie and those who find themselves in the same situation; it’s more than sad — it’s a terrible tragedy in a person’s life. It’s devastating. And even though the Constitution prohibits it, our courts refuse to enforce it. Are we just the home of the free on paper, and then only so long as we behave ourselves? Do those ten amendments to our Constitution actually mean anything? Do we really have separation of powers between those who make laws and those who interpret them? Do we have an independent judiciary? A real Democracy? I wonder.
